This trainer agreement is between Fitness Champs, LLC, a Florida limited liability company (the “Company”), and you, the individual or entity signing up as a trainer for Fitness Champs (the “Trainer”).
The Company owns and operates fitnesschamps.com (the “Website”), which is an online fitness educational community that enables individuals to gain the knowledge to get in the best shape of their life interacting and learning from the best personal trainers and fitness experts around the world (the “Service”).
The Trainer wants to participate in the Service as an independent contractor.
The parties therefore agree as follows:
Eligibility. The Service is offered and available to trainers who are 18-years old or older and who have the legal capacity to enter into binding contracts. If the Trainer is an entity, the entity’s owners must be at least 18-years old or older.
Application. To participate in the Service, the Trainer must complete the registration form (available at https://fitnesschamps.com/performer/register) and submit one piece of government-issued picture identification that contains the Trainer’s or its owner’s full legal name and birth date for age and identity verification purposes. The Trainer also must provide payment account information to receive payments from the Company. The Company may require the Trainer to submit additional legal information, including a W-9 Form if the Trainer is a United States resident or entity (the exact information required will depend on the Trainer’s country of residence or organization). By registering, the Trainer states that all account registration and profile information is accurate.
Company Proprietary Rights
License. The Company hereby grants the Trainer a nonexclusive, nontransferable, nonsublicensable license to access the Service and the related software for the Trainer’s own lawful use in accordance with this agreement (including the right to create one or more Trainer profiles, upload Trainer content, and sell content through the Trainer’s profiles). Any use other than as expressly permitted by this agreement is strictly prohibited. The Company reserves all rights not expressly granted in this agreement.
Ownership. The Website and its entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other providers of the material and are protected by United States and international copyright, patent, trademark, trade secret, and other intellectual property or proprietary rights laws. The Trainer will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website without the Company’s written consent.
Trademarks. The Company’s name; the term FITNESS CHAMPS; the Company’s logo; the Website’s domain names; and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. The Trainer will not use these marks without the Company’s written permission. All other names, logos, product and service names, designs, and slogans on the Website are the trademarks of their respective owners.
Account Creation. During the registration process, the Trainer must create an account by providing the Company with accurate information as prompted by the registration form, including a valid email address. The Trainer also must choose a password and a unique username. The Trainer must not choose a username that is offensive or that infringes another person’s service mark, trademark, or tradename.
Responsibility for Account. The Trainer is responsible for maintaining the confidentiality of the Trainer’s password and account. Further, the Trainer is responsible for all activities that occur under the Trainer’s account. The Trainer will promptly notify the Company of any unauthorized use of the Trainer’s account or any other security breach.
Liability for Account Misuse. The Company will not be liable for any loss that may incur as a result of someone else using the Trainer’s password or account, either with or without the Trainer’s knowledge. The Trainer could be held liable for losses incurred by the Company or another person due to someone else using the Trainer’s account or password.
Use of Other Accounts. The Trainer must not use anyone else’s account at any time.
Account Security. The Company cares about the integrity and security of the Trainer’s personal information. But the Company cannot guarantee that unauthorized persons will never be able to defeat the Website’s security measures or use any personal data the Trainer provides to the Company for improper purposes. The Trainer acknowledges that the Trainer provides personal data at the Trainer’s own risk.
Trainer Profile and Trainer Content
The Trainer will create a profile on the Website that displays the Trainer’s course offerings for Students to purchase courses and content (the “Trainer Profile”).
The Trainer may upload and display on the Trainer Profile various media, content, and material, including videos, photographs, audio, text, audiovisual, graphics, music, trademarks, logos, artwork, and a calendar of upcoming courses and events (collectively, the “Trainer Content”).
The Trainer may use various interactive features on the Trainer Profile, including live chat, messaging, email, and comments sections designed to foster interactions between the Trainer and Students (“Interactive Services”). The Trainer will remain responsible for all feedback transmitted by Students through the Interactive Services.
The Trainer acknowledges that the Trainer is solely responsible for the Trainer Content that the Trainer offers, publishes, transmits, or posts on the Trainer Profile. The Trainer Profile and the Trainer Content must not:
Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
Infringe any copyright, patent, trademark, trade secret, or other intellectual property or other rights of any other person;
Be likely to deceive any person;
Offer or solicit money or other consideration in exchange for any type sex;
Discuss, facilitate, promote, advertise, or solicit any illegal activity, or advocate, discuss, facilitate, promote, advertise, solicit, or assist any unlawful act, including prostitution or escort services;
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person;
Impersonate any person, or misrepresent the Trainer’s identity or affiliation with any individual or organization;
Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising;
Give the impression that it emanates from or is endorsed by the Company or any other individual or entity, if this is not the case;
Display any telephone numbers, street addresses, last names, email addresses, URLs, or any confidential information of any person; or
Contain technically harmful material, including computer viruses, logic bombs, Trojan horses, worms, malware, ransomware, harmful components, corrupted data, or other malicious software or harmful data.
The Trainer is solely responsible for determining the price the Trainer charges Students for the Trainer’s courses. The Trainer will charge only for the Trainer’s own Trainer Content. The Trainer will not charge separately for any course add-ons such as downloadable PDFs or other content and services (such as providing a link to a third-party service to sell downloadable PDFs). The Trainer’s Students must submit payment through the Website’s billing interface.
The Company is not required to review, endorse, police, or enforce any relationships, interactions, or content shared between the Trainer and the Students. The Company is not required to resolve any dispute between the Trainer and any Student or other person.
The Trainer acknowledges that the Company may record all or any part of any courses offered by the Trainer (including voice chat communications) for quality control and delivering, marketing, promoting, demonstrating, or operating the Service.
Trainer Proprietary Rights
Ownership. The Company does not claim any ownership rights in the Trainer Content depicted in the Trainer Profile. The Trainer continues to retain any ownership rights that the Trainer might have in that Trainer Content.
Trainer Content License. The Trainer hereby grants the Company, its affiliates, and service providers, and each of their and the Company’s respective licensees a perpetual, sublicensable, transferable, irrevocable, worldwide license to use, reproduce, modify, prepare derivative works of, publicly perform, publicly display, distribute, and otherwise exploit any Trainer Content that the Trainer uploads to, posts, or displays on the Trainer Profile or on the Website. This license includes the right to use the Trainer Content to promote and redistribute any part of the Website—and derivative works of it—in any media formats and through any media channels.
Use of Name and Likeness. The Trainer hereby grants the Company, its affiliates, and service providers a perpetual, sublicensable, transferable, irrevocable, worldwide license to use the Trainer’s name and likeness in any manner and any media, throughout the world, at any time, for advertising and promotional purposes and any other lawful purpose. The Trainer hereby waives any right to inspect or approve the Company’s use of the Trainer’s name and likeness.
Moral Rights Waiver. The Trainer hereby waives all moral rights in the Trainer Content that may be available to the Trainer in any part of the world, and the Trainer states that no moral rights have been asserted.
The Company may do any of the following:
Remove or block the Trainer Profile or any of the Trainer Content for any reason or no reason at the Company’s sole discretion;
Take any action with respect to the Trainer Profile or the Trainer Content that the Company considers necessary or appropriate in its sole discretion, including if the Company believes that the Trainer Profile or the Trainer Content breaches this agreement, infringes any intellectual property right of any person, threatens the personal safety of the Service’s users or the public, or could create liability for the Company;
Disclose the Trainer’s identity or other information about the Trainer to any person who claims that the Trainer Profile or the Trainer Content violates their rights, including their intellectual-property rights or their right to privacy or publicity;
Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Service; or
Terminate or suspend the Trainer’s access to all or part of the Service for any reason, including breach of this agreement.
The Company fully cooperates with law enforcement authorities and court orders requesting or directing the Company to disclose the identity or other information of anyone posting any content on the Website. The Trainer hereby waives any claims the Trainer might have against the Company, including its affiliates, licensees, and service providers, resulting from any action taken by the Company during or because of the Company’s investigations and from any actions taken as a consequence of investigations by either the Company or law enforcement authorities.
The Company does not endorse the opinions expressed in the Trainer Profile or the Trainer Content. The Company cannot and does not review the Trainer Profile or the Trainer Content before the Trainer posts it and cannot ensure prompt removal of objectionable content after it has been posted. The Company will not be liable for any action or inaction regarding transmissions, communications, or content provided by any person. The Company will not be liable to anyone for performance or nonperformance of the activities described in this section 6.
“Trainer Revenue” means Net Amount less any refunds paid.
“Gross Amount” means the amount actually received by the Company for purchases by Students for the Trainer’s courses.
“Net Amount” means Gross Amount, less (1) Taxes; (2) for web sales, a 3% administrative and handling fee; and (3) any amounts paid in connection with the Company’s marketing programs if the Trainer chooses to opt in.
Revenue Share. If the Trainer does not opt into any of the Company’s optional marketing programs, the Company will pay the Trainer 50% of the Net Amount received for the Trainer’s courses less any applicable deductions such as Student refunds (“Standard Revenue Share”). The Company may change the Standard Revenue Share from time to time by notifying you in writing via email or prominent notice on the Website no later than 30 days before the effective date of the new Standard Revenue Share.
Payouts. The Company will pay the Trainer the Trainer Revenue no later than 45 days after the end of the month in which the Company received the fee for the Trainer’s course. Unless the Company agrees otherwise, the Company or its authorized agent will pay the Trainer the Trainer Revenue through PayPal or Payoneer. The Trainer is responsible for ensuring that the Trainer’s PayPal or Payoneer account is in good standing and providing the Company with the correct email address associated with the Trainer’s PayPal or Payoneer account.
Taxes. The Trainer is responsible for paying all taxes owed for all Trainer Revenue that the Trainer earned under this agreement. The Company may withhold payments if the Company does not receive proper tax documentation. The Company also may withhold any sales or value added taxes owed on the sale of the Trainer’s courses.
Adjustments; Student Refunds. The Company may adjust the amount owed to the Trainer for any reason, at any time, without notice, including retroactively. The most common reasons for adjustments include refunds, chargebacks, fraud, and breach of this agreement. The Trainer acknowledges that Students have the right to receive a refund under certain circumstances and that neither the Trainer nor the Company will receive any payments, fees, or commissions for any transactions for which the Company has granted a Student a refund. If a Student requests a refund for a course after the Company has paid the Trainer for that course, the Company may either (1) deduct the amount of that refund from the next payment to be sent to the Trainer or (2) require the Trainer to refund any amounts refunded to Students for the Trainer’s course to the extent no additional payments are due from the Company to the Trainer or that payments due to the Trainer are insufficient to cover the amounts refunded to Students.
Disputes. If the Trainer disputes the amount of any payment made by the Company, the Trainer will notify the Company in writing no later than 15 days after the disputed payment. Failure to notify the Company within this period will result in the Trainer’s waiver of any claims related to the disputed payment.
Right to Withhold Trainer Revenues. The Company may indefinitely withhold payments to the Trainer if the Trainer breaches this agreement; violates any third-party right, including copyright, property, publicity, or privacy right; or if a person claims that all or any part of the Trainer Profile or the Trainer Content caused damage.
Statements of Fact. The Trainer states that the following facts are accurate and will continue to be accurate during this agreement:
The Trainer has the power or the legal capacity to enter into this agreement and to perform the Trainer’s obligations under this agreement.
The Trainer has independently evaluated the desirability of participating in the Service, and the Trainer has not relied on any statement other than those stated in this agreement.
If the Trainer previously had an account with the Website, the Trainer’s old account was not terminated or suspended by the Company for violation of this agreement.
The Trainer’s signing and performance of this agreement will not conflict with or violate (i) any order, judgment, or decree that applies to the Trainer; or (ii) any agreement that applies to the Trainer.
The Trainer owns or has a license to publish, publicly display, publicly perform, and permit the Company’s and the Students’ use of the Trainer Content as contemplated by this agreement.
The Trainer has the right to grant the licenses granted in sections 5.2 and 5.3 to the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns.
The Trainer has the required qualifications, credentials, and expertise, including education, training, knowledge, and skill sets, to teach and offer the services the Trainer offers in the Trainer’s courses, the Trainer Content, and through the Service.
The Trainer Revenue is and will be directed solely to the Trainer, and the Trainer is not authorized to transfer the Trainer’s checks to or deposit the Trainer’s checks with any third parties other than bona fide financial institutions.
The Trainer is not an individual, organization, or entity listed on The Office of Foreign Assets Control Specially Designated Nationals or Blocked Persons list, as published and updated by the United States Department of Treasury.
The Trainer is fully responsible for the Trainer Content.
The Trainer Profile does not discuss, solicit, promote, or advertise prostitution or escort services.
Neither the Trainer Profile nor the Trainer Content depicts any person under 18-years old.
The Trainer has a signed written consent or release for each identifiable person in the Trainer Content to use their name and likeness to allow inclusion and use of the Trainer Content in the way contemplated by this agreement.
The Trainer Profile and the Trainer Content otherwise complies with section 4.4.
The Trainer’s use of the Service will not:
invade the right of privacy or publicity of any person;
involve any defamatory, libelous, slanderous, pornographic, obscene, indecent, or otherwise unlawful material;
violate the Terms-of-Service Agreement;
violate any applicable law; or
otherwise infringe on the rights of any third parties, including those of copyright, patent, trademark, service mark, trade secret, or other intellectual property rights, or engage in false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of antidiscrimination law, or violation of any other right of any person or entity.
The Trainer will not use the Service for any business other than for providing tutoring, teaching, and instructional services to Students.
The Trainer will not engage in any activity that would require the Company to obtain any licenses from or pay any royalties to any third party, including the payment of royalties for the public performance of any musical works or sound recordings.
Nondisparagement. During this agreement and for two years after its termination, the Trainer will not take any action that is intended, or would reasonably be expected, to harm the Company or its reputation or that would reasonably be expected to lead to unwanted or unfavorable publicity to the Company. But nothing will prevent the Trainer from making any truthful statement in connection with any legal proceeding or investigation by the Company or any government body.
Termination on Notice. Either party may terminate this agreement at any time by notifying the other party in writing.
Termination by Company. The Company may block, suspend, disable, or terminate the Trainer’s access to the Website or the Service if the Company determines, in its sole discretion, that the Trainer (a) breached this agreement; (b) engaged in fraudulent, illegal, or suspicious activity; or (c) otherwise engaged in conduct that would tend to damage the Company’s reputation and goodwill.
Effect of Termination. On termination, the Trainer’s right to access the Service and all licenses granted by the Company ends. If the Trainer’s participation in the Service terminates or is suspended for any reason, the Company may, without notice, terminate or suspend the Trainer Profile and promptly remove any Trainer Content, in the Company’s discretion, at any time afterwards.
The Company is not making any guarantee of profitability or about the amount of money the Trainer will earn under this agreement. The Trainer acknowledges that past earnings does not guarantee or suggest similar future earnings.
The Company operates the Service as a neutral host, and the Company does not regularly monitor, regulate, or police the use of the Service or the Trainer profiles or courses by any of its participants. The participation in the Service by a visitor, student, Trainer, or any other third party (collectively, the “participants”) does not constitute the Company’s endorsement of that participant. Participants are independent third parties, and the Company does not, and will not, have any responsibility for the acts, omissions, agreements, promises, content, products, or other services, comments, opinions, advice, statements, offers, or information of any participant.
The Trainer assumes sole responsibility for all risks, consequences, and damages resulting from the Trainer’s interaction and association with the Service, including risks associated with the publicity of appearing on the Website; the risk of recording, piracy, or unauthorized dissemination of the Trainer Content (including the Trainer’s courses); or the risk of publication of the Trainer’s identity, including the release of the Trainer’s personal data.
The Trainer acknowledges that the Service allows the Trainer to interact with Students and that the Company does not screen or monitor the interactions between trainers and Students. The Trainer acknowledges that the Trainer may be exposed to content or conduct that is offensive, abusive, illegal, indecent, obscene, harassing, defamatory, libelous, slanderous, or otherwise objectionable. The Company is not responsible or liable for what a Student says or does on the Website.
The Company is not making any warranty—express or implied—that
the use of the Service or the Website will be timely, uninterrupted, or error-free (whether as a result of technical failure, acts or omissions of third parties, or other causes) or will operate in combination with any other hardware, software, system, or data;
the Service or the Website will meet the Trainer’s requirements or expectations;
the Service or the Website will be accurate or reliable;
errors or defects in the Service or the Website will be corrected; or
the servers that make the Service and the Website available are free of viruses or other harmful components.
The Company offers the Service and the Website “as is.” The Company is not making any warranty, either express or implied, including any implied warranty of merchantability, fitness for a particular purpose, and noninfringement for the Service or the Website. No advice or information, whether oral or written, obtained from the Company, the Website, or elsewhere will create any warranty not expressly stated here.
The Service and the Website may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. The Company will not be liable for any delays, delivery failures, or other damages resulting from these problems.
The Company will not be liable to the Trainer for any of the following:
Errors, mistakes, or inaccuracies of the Service or the Website;
Personal injury or property damage resulting from the Trainer’s access to or use of the Service or the Website;
Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
Unauthorized access to or use of the Company’s servers and any personal or financial data stored in them, including unauthorized access or changes to the Trainer’s account, transmissions, or data;
Interruption or cessation of transmission to or from the Service or the Website;
Denial-of-service attack (DoS) or distributed denial-of-service attack (DDoS);
Bugs, viruses, trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Service or the Website by any person or that might infect the Trainer’s computer or affect the Trainer’s access to or use of the Service, the Website, or the Trainer’s other services, hardware, or software;
Incompatibility between the Service or the Website and the Trainer’s other services, hardware, or software;
Delays or failures the Trainer might experience in starting, conducting, or completing any transmissions to or transactions through or with the Website; or
Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Service or the Website.
The Company will not be liable to the Trainer for breach-of-contract damages that the Company could not reasonably have foreseen on entry into this agreement. The Company also will not be liable to the Trainer, regardless of theory of liability and even if the Company knew or should have known of the possibility of these damages, for damages for (a) personal injury; (b) pain and suffering; (c) emotional distress; (d) loss of use; (e) loss of services; (f) loss of profits; (g) loss of revenue; (h) loss of goodwill; (i) loss of contracts; (j) loss of data; (k) loss of privacy; (l) loss of business or opportunity; or (m) cost of obtaining substitute services related to the Service.
Except as otherwise stated in this agreement, neither party will be liable to the other party for indirect, incidental, special, statutory, exemplary, or punitive damages arising from or relating to this agreement, regardless of theory of liability and even if that party has been advised, or knew or should have known, of the possibility of these damages, including loss of revenue or anticipated profits or lost business.
The Company’s total cumulative liability to the Trainer will not exceed the greater of the total amount owed to the Trainer under this agreement and $500.
Scope of Disclaimers and Limitations. The disclaimers and limits stated in sections 12 and 13 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive the Trainer of any protections provided to the Trainer by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the limitation of some damages or other matters, one or more of the disclaimers or limitations might not apply to the Trainer.
In General. The Trainer will pay the Company for any loss of the Company’s that is caused by (a) the Trainer’s use of the Service or the Website; (b) the Trainer Content or the Trainer Profile; (c) the Trainer’s breach of this agreement, including any statement of fact, or the Terms-of-Service Agreement; (d) the Trainer’s failure to pay taxes in connection with Trainer Revenues earned under this agreement; (e) the Trainer’s dispute with any Student or any other person; (f) the Trainer’s infringement of a person’s intellectual-property rights; (g) the Trainer’s violation of any applicable law; or (h) the Trainer’s tortious or criminal acts or omissions. But the Trainer is not required to pay if the loss was caused by the Company’s intentional misconduct.
“Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
Company’s Duty to Notify. The Company will notify the Trainer before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that the Trainer might be obligated to pay. The Company’s failure to give the Trainer timely notice does not terminate the Trainer’s obligation, except to the extent that the failure prejudices the Trainer’s ability to defend the claim or mitigate losses.
Legal Defense of a Claim
Company’s Control. The Company has control over defending a claim for a loss (including settling it), unless the Company directs the Trainer to control the defense.
Direction to Control. If the Company directs the Trainer to control the defense, each of the following applies:
The Trainer may choose and retain legal counsel.
The Company may retain its own legal counsel at its expense.
The Trainer will not settle any litigation without the Company’s written consent if the settlement (1) imposes a penalty or limitation on the Company, (2) admits the Company’s fault, or (3) does not fully release the Company from liability.
Good Faith. The Company and the Trainer will cooperate with each other in good faith on a claim.
No Exclusivity. The Company’s rights under this section 15 do not affect other rights that the Company might have.
Litigation Election. Either party may litigate the following type of case or controversy: (1) an action seeking injunctive relief, or (2) a suit to compel compliance with this dispute resolution procedure.
Negotiation. Each party will give the other a reasonable opportunity to comply before it claims that the other has not met the obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of this agreement or relating to the subject matter of this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “dispute notice”). A primary representative designated by each party will try to resolve the dispute.
Mediation. If the parties’ primary representatives are unable to resolve the dispute no later than 30 days after receiving the dispute notice, either party may, by notice to the other party and the American Arbitration Association, demand mediation under the Commercial Mediation Rules of the American Arbitration Association. Mediation will take place in Miami-Dade County, Florida. The mediation will be conducted in the English language. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
A single arbitrator will preside over the arbitration. The arbitrator may grant whatever relief would be available in a court under law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator will issue a final award on all issues submitted to the arbitrator, which award must set out findings of fact and conclusions of law. The arbitrator’s award will bind the parties and may be entered as a judgment in any court of competent jurisdiction.
Arbitration will take place in Miami-Dade County, Florida, and the language of the arbitration will be English. The parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case, except the arbitrator will award costs and fees to the prevailing party in accordance with section 16.7.
Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
Injunctive Relief. The Trainer acknowledges that breach by the Trainer of the Trainer’s obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. If any breach occurs or is threatened, the Company may seek an injunction, a restraining order, or any other equitable remedy, in each case without posting a bond or other security.
If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the United States District Court for the Southern District of Florida or in any state court in Miami-Dade County, Florida, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any proceeding.
Each party hereby waives any claim that any proceeding brought in accordance with section 16.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
Recovery of Expenses. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all costs and expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 16.7, “prevailing party” means, for any proceedings, the party in whose favor an award or judgment is rendered, except that if in those proceedings the award or judgment finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of or relating to this agreement. Either party may enforce this waiver up to and including the first day of trial.
Class Action Waiver. The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither the Trainer nor the Company will seek to have any dispute heard as a class action or participate in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
Limited Time to Bring Claims. A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
Entire Agreement. This agreement and the Terms-of-Service Agreement constitutes the entire agreement of the parties concerning the subject matter. It supersedes all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the transactions contemplated by this agreement. If any conflict or inconsistency exists between this agreement and the Terms-of-Service Agreement, this agreement will govern.
Amendments. The Company may change this agreement on one or more occasions, on condition that changes will not apply to ongoing disputes or disputes arising out of events occurring before the posted changes. The Company will notify the Trainer through the Website or by email of any changes to this agreement. Changes will become effective when posted on this page. It is the Trainer’s responsibility to check this page periodically for changes to this agreement. If the Trainer continues to use the Website after any change, the Company will consider the Trainer’s continued use as acceptance of the change unless the Trainer notifies the Company in writing no later than 15 days after the change. The Company will contact the Trainer no later than 15 days after receiving the notice to try to reach a mutually amicable resolution. If the parties are unable to reach a mutually amicable resolution, the Trainer’s sole remedy is to terminate this agreement.
Assignment and Delegation. The Trainer will not assign any of the Trainer’s rights or delegate any performance under this agreement, except with the Company’s advance written consent. The Company may assign its rights or delegate its performances under this agreement without the Trainer’s consent. Any purported assignment of rights or delegation of performance in breach of this section 17.3 is void.
Waivers. The parties may waive any provision of this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
that if an unenforceable provision is modified or disregarded in accordance with this section 17.5, then the rest of the agreement will remain in effect as written; and
that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
Form. All notices and other communications between the parties will be in writing.
Notice to the Company. The Trainer may send notice to the Company by email at email@example.com unless a specific email address is listed on the Website for giving notice. The Company may change its contact information on one or more occasions by posting the change on the Website. Please check the Website for the most current information for sending notice to the Company.
Notice to the Trainer. The Trainer consents to receiving any notice from the Company in electronic form either (1) by email to the email address listed in the Trainer’s account or (2) by posting the notice on a place on the Website chosen for this purpose. The Trainer may change the Trainer’s contact information by updating the contact information in the Trainer’s account.
Receipt. The Company will consider an email notice received by it only when the Company’s server sends a return message to the Trainer acknowledging receipt. The Company will consider notices sent to the Trainer by email received when the Company’s email service shows transmission to the Trainer’s email address. All other notices will be effective on receipt by the party to which notice is given, or on the fifth day after posting, whichever occurs first.
Governing Law. Florida law, without giving effect to its conflicts of law principles, governs all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
If a force majeure event prevents a party from complying with any one or more obligations under this agreement, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that force majeure event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that force majeure event, and (3) that party complies with its obligations under section 17.8(c).
For purposes of this agreement, “force majeure event” means, for any party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstances that results in that party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
If a force majeure event occurs, the noncomplying party will promptly notify the other party of occurrence of that force majeure event, its effect on performance, and how long the noncomplying party expects it to last. From then on, the noncomplying party will update that information as reasonably necessary. During a force majeure event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
No Third-Party Beneficiaries. This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
Relationship of the Parties. The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other to any agreement with a third party.
Successors and Assigns. This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 17.11 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 17.3 addresses these matters.
Further Assurances. The parties will take any further actions, or sign any further documents, as may be necessary to implement and carry out the intent of this agreement.
Electronic Signature. The Trainer acknowledges that any affirmation, assent, or agreement the Trainer sends through the Website in response to a prompt binds the Trainer. The Trainer further acknowledges that when the Trainer clicks on an “I agree,” “I consent,” or other similarly worded “button” or entry field using a finger (for touchscreen devices), mouse, keystroke, or other device, this action is the legal equivalent of the Trainer’s handwritten signature and binds the Trainer in the same way.
Voluntary Agreement. The Trainer has entered this agreement voluntarily and for valid reasons. The Trainer acknowledges that the Trainer (i) has carefully read this agreement, (ii) discussed it with the Trainer’s attorneys or other advisors, (iii) understood all the terms, and (iv) will comply with it. The Trainer has relied on the advice of the Trainer’s attorneys or other advisors about the terms of this agreement and waives any claim that the terms should be construed against the drafter.
No Reliance. The Trainer acknowledges that in electronically signing this agreement, the Trainer does not rely and has not relied on any statement by the Company or its agents, except those statements contained in this agreement.
Feedback. The Company encourages the Trainer to give feedback about the Service or the Website. But the Company will not treat as confidential any suggestion or idea the Trainer gives, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to the Trainer.
English Language. The Company has drafted this agreement in the English language and no translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in English.