TERMS OF SERVICE
Last Updated as of November 19, 2020
*If you do not understand any of the terms of this Agreement, please contact us before using the Services.
1. Definitions and Interpretation
Unless otherwise defined herein, or the context otherwise dictates, capitalized terms used in the Terms of Service shall have the indicated meanings set forth in Exhibit “A” attached hereto.
b. The Vendor reserves the right to, at its sole discretion, amend the Terms of Service at any time and without notice, the most current version of which shall always be available at https://outrightfitnesspp.com/legal. You acknowledge and agree that the continued use of the Services by you or your Agents, following any amendment of the Terms of Service, shall signify your assent to, and acceptance of, such amended terms and conditions.
c. Subject to the Terms of Service, if you do not agree to the Terms of Service, or any subsequently amended term or condition thereof, you and your Agents cannot use the Services, and any Terms of Service previously entered into must forthwith be terminated by you pursuant to Section 15(a).
3. Special Consents and Acknowledgements
a. YOU ACKNOWLEDGE AND AGREE THAT:
i. IF YOU HAVE AN EMERGENCY, HAVE AN URGENT HEALTH CONCERN OR NEED TO OBTAIN MEDICAL ADVICE, YOU SHOULD REFRAIN FROM USING THE SERVICES AND THE CONTENT AND SHOULD IMMEDIATELY CONTACT YOUR PHYSICIAN OR GO TO THE NEAREST HOSPITAL;
ii. THE INFORMATION CONTAINED WITHIN THE SERVICES AND THE CONTENT IS INTENDED TO BE GENERAL IN NATURE, NOTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT CONSTITUTES MEDICAL ADVICE AND YOU SHOULD NOT RELY ON ANYTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT AS A SUBSTITUTE FOR APPROPRIATE AND TIMELY CONTACT WITH YOUR PHYSICIAN;
iii. THE VENDOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO: (1) CONTENT FORMING PART OF OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION WORK-OUT PLANS, EXERCISE VIDEOS, AND OTHER SIMILAR CONTENT, WHETHER OR NOT PROVIDED BY OR ON BEHALF OF THE VENDOR AND (2) TRAINERS, INCLUDING WITHOUT LIMITATION THE QUALITY OR CERTIFICATION LEVELS THEREOF, AND THAT INTERACTIONS WITH TRAINERS THROUGH THE SERVICES OR OTHERWISE IS AT YOUR SOLE DISCRETION AND RISK;
iv. YOU SHOULD NEVER CHANGE OR STOP ANY COURSE OF MEDICAL TREATMENT WITHOUT FIRST CONSULTING YOUR PHYSICIAN; AND
v. PARTICIPATING IN AN EXERCISE PROGRAM OR DIET CAN CAUSE INJURY, AND YOU ELECT TO DO SO ENTIRELY AT YOUR OWN RISK.
4. License to Use Services
a. Subject to your compliance with the terms and conditions of the Terms of Service, the Vendor hereby grants to you a revocable, personal, non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the Services procured and/or purchased by you, or for you, exclusively in the manner set out in the Terms of Service.
b. All right, title, interest, ownership rights and intellectual property rights in and to the Services and the trademarks of the Vendor, are and shall remain the property of the Vendor and its licensors, as applicable.
c. The Vendor reserves all rights to the Services not expressly granted to you herein, and without limiting the generality of the foregoing, nothing in the Terms of Service grants to you, by implication, estoppel, or otherwise, any license or right to use the Services, any Content other than Your Content and/or the Vendor’s name, domain names, trademarks, logos, or other distinctive brand features, other than as expressly set out in the Terms of Service.
d. Notwithstanding any other term of the Terms of Service, including without limitation Section 4(a), no Outright Fitness Customer, Trainer or Trainee shall be allowed or permitted to access or make use of the Services, until such Outright Fitness Customer, Trainer or Trainee has entered into the most current version of the Terms of Service.
5. Information and Access IDs
a. In order to use the Services, you must provide certain information through the Services, including without limitation your full legal name, physical address, email address and phone number. You may furthermore be asked to disclose your credit card details, payment processor account information and certain other information with respect to the payment of Fees and Charges (in each case as defined below) and other financial transactions facilitated by the Services. You represent and warrant that all information you provide to the Vendor through the Services, and otherwise, shall be true, accurate, current and complete, and you shall update such information as necessary to maintain its truth and accuracy. You furthermore represent and warrant that at no point shall you impersonate any person or entity or misrepresent any affiliation of a person or entity.
b. You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a Outright Fitness Customer, ensure that only the Trainers and Trainees who have been authorized to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Subscription Plan you subscribe to at such time; and (vi) if you are a Outright Fitness Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third-parties, unless agreed to in writing by the Vendor. You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a Outright Fitness Customer, ensure that only the Trainers and Trainees who have been authorized to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Usage Plan you subscribe to at such time; and (vi) if you are a Outright Fitness Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third-parties, unless agreed to in writing by the Vendor.
6. Payment Processing
Payment processing services for the Services are provided by Stripe Payments (referred to herein as the “Payment Processing Services Provider”). You hereby authorize the Vendor to share with the Payment Processing Services Provider the financial information, banking details, transaction information and account information provided by you and/or related to your use of the Services as is reasonably required for the provision of the payment processing features contemplated by the Services (including payment of Fees and Charges (each as defined below)). You also agree that the Vendor is not responsible or liable for the use or misuse of such financial information, banking details, transaction information and account information by the Payment Processing Services Provider or any third party.
If you utilize the payment processing features of the Services, you shall not (i) submit what you believe or know to be a fraudulent charge, refund, dispute or other transaction (ii) use such payment processing features in a manner that is an abuse of or in violation of this Agreement, any terms or policies of the Payment Processing Services Provider, or applicable laws.
7. Payment of Fees to Vendor
a. If you are a Outright Fitness Customer, then you acknowledge and agree that:
i. UNTIL THE TERMS OF SERVICE IS TERMINATED BY YOU OR THE VENDOR IN ACCORDANCE WITH SECTION 15, YOU SHALL PAY TO THE VENDOR MONTHLY OR ANNUAL FEES IN ADVANCE BASED ON THE SUBSCRIPTION PLAN SUBSCRIBED TO BY YOU DURING THE APPLICABLE PERIOD AND ALL IN-APPLICATION PURCHASES MADE BY YOU AND YOUR AGENTS DURING SUCH PERIOD, CALCULATED IN ACCORDANCE WITH THE FEE SCHEDULE (collectively, the “Fees”);
ii. THE FEES SHALL BE PAID BY CREDIT CARD OR IN ANOTHER FORM OF IMMEDIATELY AVAILABLE FUNDS ACCEPTABLE TO THE VENDOR, ACTING REASONABLY, AND IF YOU PROVIDE YOUR CREDIT CARD DETAILS THROUGH THE SERVICES OR OTHERWISE, YOU AGREE TO THE VENDOR AND ITS PAYMENT PROCESSING PROVIDER CHARGING THE FEES TO YOUR CREDIT CARD WITHOUT REQUIRING ANY FURTHER NOTICE TO, OR CONSENT FROM, YOU, AND YOU FURTHERMORE REPRESENT AND WARRANT THAT SUCH FEE PAYMENTS SHALL BE MADE WHEN DUE;
iii. if you fail to pay Fees when due, the Vendor shall be entitled to take any action set out in Section 15(b), including without limitation changing your Subscription Plan to a Trial Subscription Plan, and all overdue Fees shall accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and you shall reimburse the Vendor for all expenses (including reasonable attorneys’ fees) incurred by the Vendor to collect any amount that is not paid when due;
iv. you shall be responsible for any and all currency conversion charges as well as sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial or local governmental entity on any Fees other than any taxes imposed on, or with respect to, the Vendor’s income;
v. notwithstanding termination of the Terms of Service, you shall not be entitled to a refund from the Vendor for any Fees or any pro rata portion of any Fees paid or payable to the Vendor pursuant to the Terms of Service: (A) in respect of any monthly billing cycle that had already commenced at the date of such termination, if you are subscribed to a monthly Subscription Plan; and (B) in respect of any annual billing cycle that had already commenced at the date of such termination, if you are subscribed to an annual Subscription Plan (by way of example, if you subscribe for an annual Subscription Plan on July 5, 2019 and terminate the Terms of Service on July 10, 2020, then you shall be liable to pay the annual Fee for July 5, 2019 to July 4, 2020 and the annual Fee for July 5, 2020 to July 4, 2021, and you shall not be entitled to a refund from the Vendor in relation to any such Fees);
vi. NOTWITHSTANDING ANY OTHER TERM OF THE TERMS OF SERVICE, THE VENDOR SHALL BE ENTITLED TO AMEND THE FEE SCHEDULE FROM TIME TO TIME, BY GIVING YOU THIRTY (30) DAYS WRITTEN NOTICE OF SUCH AMENDMENT, WHICH NOTICE SHALL AMEND THE FEE SCHEDULE ACCORDINGLY, AND SHALL BE BINDING ON YOU, AS OF YOUR NEXT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE (the “Amended Fee Schedule”).
vii. IF YOU AGREE TO THE TERMS OF SERVICE AS AMENDED FROM TIME TO TIME BUT DO NOT AGREE TO A SPECIFIC AMENDED FEE SCHEDULE, YOU AND ALL TRAINERS AND TRAINEES WHO HAVE BEEN AUTHORISED TO ACCESS AND USE THE SERVICES PROCURED BY YOU CANNOT USE THE SERVICES AFTER THE END OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE, AND THE TERMS OF SERVICE MUST BE TERMINATED BY YOU PURSUANT TO SECTION 15(a) ON OR BEFORE THE LAST DAY OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE; and
viii. you acknowledge and agree that the Vendor may, from time to time in its sole discretion, offer Trial Subscription Plans, and that: (i) you shall comply with any and all additional terms, restrictions and/or limitations imposed by the Vendor on any such Trial Subscription Plan; and (ii) the Vendor may at any time and for any reason, without liability to you or any other person alter, amend, modify or cancel any aspect of such Trial Subscription Plans, including without limitation, the term, access rights, Fees, nature, scope, features, functionality, operation and Content associated therewith; and
8. Products and Services, Trainerize Pay and Payment Facilitation
a. If you are a Trainee:
i. You understand that use of the Services may result in charges to you for the services or goods you receive from a Outright Fitness Customer and/or Trainer (“Charges “). After you have received services or goods obtained through your use of the Services, if you utilize the Services in such manner, the Vendor will, through its Payment Processing Service Provider, facilitate your payment of the applicable Charges to the applicable Outright Fitness Customer and/or Trainer (the “Service Provider”). Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Service Provider. You hereby acknowledge and agree that the Vendor is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services. Vendor is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.
ii. Charges paid by you are final and non-refundable, unless otherwise determined by the Vendor or the Service Provider, as applicable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Services, any disruption to the Services, or any other reason whatsoever.
iii. The Services will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Access ID or account regardless of your awareness of such Charges or the amounts thereof. The Vendor may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
iv. You may only use the Services for legitimate transactions with Service Providers. You are responsible for your relationship with Service Providers. Vendor is not responsible for the products or services you purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you receive, and for delivery, support, refunds, returns, and for any other ancillary services you receive from Service Providers. You will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services
b. If you are a Service Provider:
i. If you utilize the Services in such manner, you will receive payment through the Payment Processing Services Provider for any Charges actually paid by a Trainee related to services or goods provided by you through the Services, less any commissions, transaction fees or other deductions charged by the Payment Processing Services Provider and/or the Vendor. You hereby authorize the Vendor to process all payments due to you through its Payment Processing Services Provider.
ii. You hereby acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that the Vendor is required to withhold by law. You hereby acknowledge and agree that the Vendor is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services, or for any failure by a Trainee to make payment to you in connection with the Services.
iii. You hereby acknowledge and agree that you shall be responsible for all currency conversion charges and responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on any Charges. You hereby agree to defend, indemnify and hold harmless the Vendor and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney’s fees) arising from any failure by you to collect and remit such charges and amounts.
iv. You may only use the Services for legitimate transactions with Trainees. You are responsible for your relationship with Trainees. Vendor is not responsible for the products or services you publicize or sell, or that your Trainees purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to Trainees. It is very important to the Vendor that your Trainees understand the purpose, amount, and conditions of charges you submit through the Services. With that in mind, when using the Services you agree to: (A) accurately communicate, and not misrepresent, the nature of any product or service, and the amount of the charge or transaction in the appropriate currency (B) provide Trainees a meaningful way to contact you in the event that the product or service is not provided as described; and (C) not use Services to sell products or services in a manner that is unfair or deceptive, exposes Trainees to unreasonable risks, or does not disclose material terms of a purchase in advance. You also agree to maintain a fair return, refund, cancellation, or adjustment policy, and clearly explain the process by which Trainees can receive a refund.
v. You are responsible for knowing whether a transaction initiated by a Trainee is erroneous (such as a Trainee purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases). If you are unsure if a transaction is erroneous or suspicious, you agree to research the transaction and, if necessary, contact the Trainee before fulfilling or completing the transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services. You are solely responsible for providing support to Trainees regarding transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. Vendor is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.
vi. You hereby represent and warrant that: (A) any information you provide us about your business, products, or services is accurate and complete; (B) any Charges represent a transaction for permitted products or services, and any related information accurately describes the transaction; (C) you will fulfil all of your obligations to Trainees and will resolve all disputes with them; (D) you will comply with all laws applicable to your business and use of the Services; (E) you will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services.
9. General Use of the Services – Permissions and Restrictions
a. You shall not use the Services to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right.
b. You shall not copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services.
c. You shall not use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services. You shall not collect or harvest any information in an automatic, bulk or systematic way, including any personally identifiable information, from the Services or Content.
d. You shall not interfere with, or attempt to interfere with, the Services or the networks or services connected to the Services, whether through the use of viruses, bots, worms, or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware, or otherwise permit such activity.
e. You shall use the Services in accordance with the Terms of Service and any and all applicable laws and regulations. The Vendor reserves the right to investigate and take appropriate action against anyone who, in the Vendor’s sole discretion, violates this provision, including without limitation, taking legal action or any action set out in Section 15(b).
a. Unless otherwise expressly set out in the Terms of Service, all right, title, interest, ownership rights and intellectual property rights in and to Your Content, and your trademarks, are and shall remain your property, your Agents’ property and/or the property of its or their respective licensors, as applicable. Notwithstanding the foregoing, you hereby acknowledge and agree that some or all of Your Content may be inaccessible on or through the Services, including without limitation, due to an event set out in Sections 15 and 21(a)(iv).
b. You hereby acknowledge and agree that Your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Services, and as such may be accessible to others including without limitation to: (i) your Agents; (ii) other users of the Services; (iii) the Vendor and the Vendor’s Agents; (iv) third-party service providers and their Agents; and (v) any other person to whom any of the foregoing persons have granted access to Your Content. The Vendor shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Services is not shared between Outright Fitness Customers (unless you select otherwise), but you acknowledge and agree that the Vendor cannot and does not guarantee any confidentiality with respect to Your Content whatsoever.
c. You represent and warrant that you own or have all of the necessary licenses, rights, consents and permissions to use and authorize the Vendor to use all patent, trademark, trade secret, copyright and other proprietary rights in and to any and all of Your Content, to permit inclusion and use of Your Content in the manner contemplated by the Services and the Terms of Service without violating, infringing or appropriating any person’s privacy rights, publicity rights, copyrights, trademark rights, contractual rights or any other legal right. You hereby grant the Vendor an irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of Your Content, exclusively for the purpose of providing the Services.
d. The Vendor reserves the right to, with or without notice, remove Your Content for any reason whatsoever, including without limitation any of Your Content that: (i) allegedly infringes on another’s intellectual property rights; (ii) is patently offensive, exploitative, criminal, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) is considered adult or pornographic; (iv) harasses or advocates harassment of another person, or promotes illicit or criminal activity; (v) solicits personal information from anyone under 18; (vi) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vii) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”; or (viii) interferes or attempts to interfere with the proper working of the Services, disrupts or attempts to disrupt the normal flow of dialogue with an excessive number of messages (flooding attack) to the Services, prevents or attempts to prevent others from using the Services or otherwise negatively affects other persons’ ability to use the Services.
e. You acknowledge and agree that the Vendor typically does not, and has no obligation to, review, censor or edit Your Content or any other Content, or the contents of any third-party site or application, but may at the Vendor’s sole discretion do so at any time. The Vendor does not make any guarantees about the accuracy, currency, reliability, suitability, effectiveness, quality or correct use of Your Content (including without limitation any fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any information you upload or otherwise make available through any document management features of the Services). You acknowledge and agree that the Vendor does not endorse Your Content or any other Content, the contents of any third-party site or application or any opinion, recommendation, or advice expressed therein, and the Vendor expressly disclaims any and all liability in connection therewith. You acknowledge and agree that the Vendor assumes no responsibility for the content, privacy policies, or practices of any third-party, including without limitation, any third-party service provider which may host Content.
f. The Vendor contracts a third party to store Content, including Your Content, and, while these Terms of Service are in effect and you have an active account for access to the Services, will use commercially reasonable efforts to store and back up such Content at reasonable intervals as may be determined by the Vendor in its sole discretion. However, you should make your own interim back-ups of all of Your Content, including without limitation any and all Content you upload or otherwise make available through the document management features of the Services. Following any cancellation of your account, the Vendor is under no obligation to store Your Content and may delete your account and Your Content immediately upon such cancellation. Notwithstanding anything to the contrary set forth in these Terms of Service, the Vendor shall have no liability or responsibility for any loss or damage, however caused, arising from any loss of Your Content.
g. If you are a Service Provider and you receive Content or other information through the Services that constitutes the Personal Information of a Trainee, including without limitation any fitness or health tracking data or nutritional data of a Trainee, you agree to only use and disclose such information for the purpose of providing fitness training and related services to such Trainee, and to use reasonable means appropriate to the sensitivity of such information to protect it from unauthorized access, collection, use and disclosure.
11. Copyright and Trademark Compliance and Complaints
a. If you are an intellectual property owner or an agent thereof and believe that either (1) any Content on the Services or (2) any material or activity contained on an online location to which the Services have referred or linked users, infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):
1. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);
4. information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
5. a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification pursuant to the DMCA should be submitted to:
Copyright Manager Outright Fitness
15508 Bratton Ln. Suite 625, Austin Texas, 78728
Phone: 1 800 906 1673
b. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid. Emails or notices sent to Vendor without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
12. Trademarks and Celebrity Material
a. Vendor responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.
b. Please be aware that celebrities, and sometimes others, may have a “right of publicity,” which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although you may be a fan, you risk infringing celebrity rights if you use a celebrity name or likeness on the Services and you do not have the celebrity’s permission.
c. If you are a trademark owner or a celebrity and you believe your rights have been infringed on the Services, please submit a notification of infringement to our agent listed in the Section entitled “Copyright and Trademark Compliance and Complaints” above.
d. To submit a notification, you must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.
e. When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office or other national trademark office. Please also provide the location on the Services where you believe the infringement is occurring.
13. Third Party Services
The Services may provide you with access to services (including video content related services) provided by third parties (each a “Third Party Service”). Your access to and use of Third Party Services and the information, data and other content available through Third Party Services are subject to applicable third party service agreements or terms and conditions. Third Party Services are independent from the Vendor and the Services, and the Vendor does not endorse, and has no responsibility or liability for or control over, Third Party Services. Your use of Third Party Services and your dealings with the owners or operators of Third Party Services is at your own risk, and you will not make any claim against Vendor arising from, connected with, or relating to your use of Third Party Services or your dealings with the owners or operators of Third Party Services. Without limiting the foregoing, the Services utilize certain YouTube API Services, and by using the Services you are also agreeing to be bound by the YouTube Terms of Service (found at https://www.youtube.com/t/terms), as may be amended from time to time.
a. You acknowledge and agree that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data, information and other output or feedback which you and your Agents provide to the Vendor related to the Services, the Vendor or the Vendor’s business, including without limitation in any user forums made available by the Vendor, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Services by you and your Agents (“Feedback”), shall become the Vendor’s property without any compensation or other consideration payable to you or your Agents, and you do so of your own free will and volition. The Vendor may or may not, in its sole discretion, use the Feedback, commercialize the Feedback and/or incorporate the Feedback in whatever form or derivative into the Services, its other products and services, or any future versions or derivatives of the foregoing. You shall and do hereby assign, and shall cause the assignment of, all rights on a worldwide basis in perpetuity to the Vendor in any and all Feedback and, as applicable, shall and do hereby waive, and shall cause the waiver of, all moral rights therein and thereto.
15. Termination, Modification and Suspension
a. SUBJECT TO SECTION 7(a)(v), YOU MAY TERMINATE THE TERMS OF SERVICE AT ANY TIME AND FOR ANY REASON BY INITIATING AND COMPLETING THE ACCOUNT CANCELLATION PROCESS SET OUT AT https://outrightfitnessapp.com/my-account/ AND DISCONTINUING YOUR USE OF THE SERVICES.
b. THE VENDOR MAY AT ITS SOLE DISCRETION AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT NOTICE: (I) BAN ANY COMPUTER OR DEVICE FROM ACCESSING THE SERVICES; (II) PREVENT ANY PERSON FROM ACCESSING THE SERVICES; (III) TERMINATE, MODIFY, SUSPEND OR DISCONTINUE ANY SUBSCRIPTION PLAN, ACCESS ID, TERMS OF SERVICE OR SERVICES;
(IV) REMOVE ANY OF YOUR CONTENT; AND/OR (V) CHANGE YOUR SUBSCRIPTION PLAN TO A TRIAL SUBSCRIPTION PLAN.
16. Warranty Disclaimer
a. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICES (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF THE VENDOR OR ANY SERVICE PROVIDER), AND ANY AND ALL INTERACTIONS BETWEEN YOU AND SERVICE PROVIDERS THROUGH THE SERVICES OR OTHERWISE, SHALL IN ALL CASES BE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED FROM THE VENDOR OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
b. THE VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICES. THE VENDOR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED IN ANY USER SUBMISSION, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. THE VENDOR SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS OF ANY PRODUCT OR SERVICE.
17. Limitation of Liability
a. IN NO EVENT SHALL THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS DIRECTLY OR INDIRECTLY, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, INCOME, PROFIT, REPUTATION, GOODWILL OR CUSTOMERS WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICES OR ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF THE VENDOR OR ANY SERVICE PROVIDER), INCLUDING WITHOUT LIMITATION RESULTING FROM ANY: (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT; (III) UNAUTHORIZED ACCESS TO OR USE OF THE VENDOR’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN OR THEREON; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) TERMINATION OF ACCESS TO THE SERVICES OR REMOVAL OF ANY CONTENT BY THE VENDOR; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD-PARTY; OR (VII) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, WHETHER THE FOREGOING IS BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE AFFECTED PARTIES ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. THE TOTAL AGGREGATE LIABILITY OF THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE AND/OR USE OF, OR ACCESS TO, THE SERVICES SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY YOU, NOT TO EXCEED THE LESSER OF CAD $100.00 AND THE AMOUNT ACTUALLY RECEIVED BY THE VENDOR FROM YOU PURSUANT TO THE TERMS OF SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ANY ACTION COMMENCED AGAINST THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE, SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION SHALL HAVE FIRST ARISEN.
c. THE VENDOR DOES NOT CONTROL CONTENT AND DOES NOT GUARANTEE THE ACCURACY OR INTEGRITY OF SUCH CONTENT. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE VENDOR SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
d. YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE RELATED TO THE TERMS OF SERVICE YOU HEREBY GIVE UP YOUR RIGHT TO (I) HAVE A TRIAL BY JURY; AND (II) PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY DISPUTE RELATED TO THE TERMS OF SERVICE.
e. ALL FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
18. Indemnity by You
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES) ARISING FROM: (I) YOUR OR YOUR AGENTS’ USE OF OR ACCESS TO THE SERVICES; (II) ANY THIRD PARTY USE OF, OR ACCESS TO, YOUR ACCESS ID; (III) YOUR OR YOUR AGENTS’ VIOLATION OF ANY TERM OF THE TERMS OF SERVICE; (IV) YOUR OR YOUR AGENTS’ VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION YOUR CONTENT INFRINGING ANY INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT), OR PRIVACY RIGHT; (V) ANY CLAIM THAT YOUR CONTENT CAUSED DAMAGE TO A THIRD-PARTY. (VI) ANY DISPUTE OR CLAIM ARISING BETWEEN YOU AND YOUR CUSTOMERS (INCLUDING TRAINEES) OR SERVICE PROVIDERS (INCLUDING Outright Fitness CUSTOMERS AND TRAINERS) IN ANY WAY RELATED TO OR CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO PRODUCTS OR SERVICES PROCURED OR PURCHASED THROUGH THE SERVICES; OR (VII) ANY FRAUDULENT TRANSACTIONS OR CHARGES SUBMITTED OR PERMITTED BY YOU OR ON YOUR BEHALF OR IN WHICH YOU PARTICIPATE IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY PAYMENT PROCESSING FEATURES THEREOF. THIS DEFENCE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THE TERMS OF SERVICE AND YOUR AND YOUR AGENTS’ USE OF THE SERVICES.
The Terms of Service, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by the Vendor without restriction.
17. Data Usage and Charges
The Services may use information and data transmission networks operated by third-parties to send data, information and Content from a computer or device to the Vendor’s servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Services and/or as a result of data, information and Content submitted or received by your computer or device through the Services.
18. Updates and Availability of Services
a. You acknowledge and agree that:
i. the Vendor may from time to time, at its sole discretion, make Updates available to you, but is under no obligation to do so;
ii. Updates may alter, amend or modify the Services, including without limitation, its nature, scope, features, functionality, operation and Content, and you agree to such Updates being made to the Services from time to time, at the sole discretion of the Vendor;
iii. Updates may require you to enter into new terms of service or, alternatively, shall be subject to all terms and conditions of the Terms of Service; and
iv. there may be occasions when the Services may be interrupted, including without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
a. Nothing in the Terms of Service shall be construed to constitute the Vendor and yourself as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. You shall have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of the Vendor or waive any right, interest or claim that the Vendor may have, other than as expressly set out herein, or with the prior written consent of the Vendor.
b. If there is any dispute between you and the Vendor about or involving the Services or the Terms of Service, you hereby acknowledge and agree that the dispute shall be governed by and construed in accordance with the laws of the United States of America, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Austin, Texas with respect to any claim, proceeding or action relating to or otherwise arising out of the Terms of Service or your access to or use of the Services, howsoever arising, provided always that the Vendor may seek and obtain injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
c. The Terms of Service constitutes the whole legal agreement between you and the Vendor and governs your use of the Services (but excluding any services which the Vendor may provide to you under a separate written agreement), and completely replaces and supersedes any prior and contemporaneous agreements between you and the Vendor in relation to the Services. Notwithstanding the foregoing, you and the Vendor shall be entitled to enter into an additional superseding agreement which by its terms may expressly alter, amend or terminate the Terms of Service.
d. If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any term of the Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and the Vendor’s failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.
e. Sections 4(b), 4(c), 6, 7(a)(i), 7(a)(ii), 7(a)(iii), 7(a)(iv), 7(a)(v), 8, 9(a), 9(b), 9(c), 9(d), 10 through 19, 22 and such other provisions of the Terms of Service which by implication from its nature is intended to survive the termination or expiration of the Terms of Service, shall survive termination or expiration of the Terms of Service.
20. Contact the Vendor
You may direct any questions, complaints or claims with respect to the general functionality and operation of the Services to the Vendor at email@example.com.
DEFINITIONS AND INTERPRETATION
“Access IDs” means the unique identification names and corresponding passwords assigned to a Outright Fitness Customer and the Trainers and Trainees who have been authorized to access and use the Services procured by such Outright Fitness Customer, and allowing such persons to access and use the Services, and “Access ID” shall be construed accordingly.
“Agents” means, with respect to a Party, such Party’s agents, employees, consultants, contractors and/or other authorized representatives, and “Agent” shall be construed accordingly.
“Content” means any material posted on, submitted on, uploaded to, made available to and/or appearing on the Services, including without limitation, data, information, text, graphics, photos, videos, charts, or location information.
“Fee Schedule” means the Vendor’s fee schedule, as provided by the Vendor to certain users of the Services from time to time, setting out the cost of the respective Usage Plans, and/or the cost of the respective In-Application Purchases, as applicable.
“In-Application Purchases” means the supplementary products, services and/or functionality offered for sale by the Vendor, which is not otherwise included in the cost of the Usage Plan subscribed to by a Outright Fitness Customer.
“Parties” means the parties to the Terms of Service, and “Party” shall be construed accordingly.
“Services” means the services offered or made available by the Vendor, including without limitation the Trainerize software as a service platform, and any website, application or widget associated therewith, as modified by the Vendor by way of Updates from time to time.
“Trainee” means a person directly or indirectly accessing or making use of the Services procured by a Outright Fitness Customer as a trainee, including without limitation, for the purpose of accessing, obtaining or otherwise acquiring fitness training services from the Outright Fitness Customer and/or a Trainer, and “Trainees” shall be construed accordingly.
“Trainer” means a person directly or indirectly accessing or making use of the Services procured by a Outright Fitness Customer as a trainer, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training services to one or more Trainees, and “Trainers” shall be construed accordingly.
“Trial Subscription Plans” means the free or discounted Subscription Plans, and “Trial Subscription Plan” shall be construed accordingly.
“Outright Fitness Customer” means a person who procures Services from the Vendor, including without limitation, by placing an order for a specific Usage Plan with the Vendor, thereby allowing access to, and use of, such Services by the Outright Fitness Customer and the related Trainers and Trainees, and “Outright Fitness Customers” shall be construed accordingly.
“Updates” means versions of the Services that contain functional enhancements, modifications, error corrections and/or fixes relating to the Services, and “Update” shall be construed accordingly.
“Subscription Plans” means the access plans to the Services offered for sale or, with respect to certain Trial Subscription Plans, on a no-charge basis, by the Vendor to Outright Fitness Customers, each such plan allowing the Outright Fitness Customer and a certain set number of Trainers and Trainees to access and use the Services or certain features thereof procured by the Outright Fitness Customer, through the use of Access IDs, and “Usage Plan” shall be construed accordingly.
“you”, “your” and/or “yourself” means either the Outright Fitness Customer, Trainer or Trainee entering into the Terms of Service, as applicable.
“Your Content” means Content posted, submitted, made available, uploaded and/or displayed on or through the Services by you or your Agents, whether directly or through third party sites, applications or products (including without limitation any media (including photos, videos and accompanying music), fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any and all information you upload or make available through any document management features of the Services).
Outright Fitness App
Affiliate Program Agreement
Last December 29, 2023
PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and us (“Outright Fitness”). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible.
The Affiliate Program Agreement applies to your participation in our Affiliate Program (the “Affiliate Program”). These terms are so important that we cannot have you participate in our Affiliate Program unless you agree to them.
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes or ends. If we update or replace the terms we or the Affiliate Dashboard will let you know via electronic means, which may include an in-app notification or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
“Outright Fitness App” means a company owned, operated or controlled by Outright Fitness LLC.
“Affiliate Program” means our affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link or uses a coupon code that we have made available to you via the Affiliate Dashboard.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Coupon Code” means a unique tracking coupon code link that you promote on your site or through other channels.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Affiliate Dashboard” means the digital resource that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
“Agreement” means this Affiliate Program Agreement and all materials referred or linked to in here.
“Commission” means an amount described in the Affiliate Dashboard (or if applicable, in the Program Policies) for each Customer Transaction.
“Customer” means the authorized actual user of the Outright Fitness Products who has purchased an Outright Fitness product after being an Affiliate Lead.
“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement.
“Customer Data” means all information that Customer submits or collects via the Outright Fitness Products and all materials that Customer provides or posts, uploads, inputs or submits for public display through the Outright Fitness Products.
“Outright Fitness Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
“Outright Fitness Products” means both the Subscription Services and Other Products.
“Program Policies Page” means the landing page: https://www.Outright FitnessApp.com/affiliate-program-policies where we will provide all the up to date guidelines and policies for the Affiliate Program.
“Other Products” means those products and services that we offer, which are not included in the Subscription Service (as detailed below); and, for the purposes of this Agreement, Other Products include all of our equipment products, supplements, gym memberships, gym services, and in-person training.
“Subscription Service” means our app-based remote personal training services that is subscribed to, and developed, operated, and maintained by us, accessible via https://www.OutrightFitnessApp.com, https://outrightfitness.com, or another designated URL. For the purposes of this Agreement, the Subscription Service does not include our in-person personal training services or gym services.
“We”, “us”, “our”, “company” and “Outright Fitness” means Outright Fitness LLC.
“You” and “Affiliate” means the party, other than Outright Fitness, entering into this Agreement and participating in the Affiliate Program.
Non-Exclusivity. This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
Affiliate Acceptance. Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.
Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Dashboard (or if applicable, in the Program Policies) from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you.
We will pay you a Commission as described in the Affiliate Dashboard for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement.
The start of the Customer’s subscription is determined by the date of the first purchase or sign up (as applicable) of the Subscription Service by the Customer and you will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by that customer during their Subscription Service. For example, if the initial Customer Transaction is for our Workout Library, and there is a subsequent purchase by that same customer for a Custom Remote Program, Affiliate will receive Commission for the initial user purchase only. The Affiliate will not be entitled to receive Commission on any additional purchases of Outright Fitness Products by that same Customer.
Eligibility. To be eligible for Commission (i) an Affiliate Lead must be valid in accordance with the ‘Validity’ section, (ii) a Customer Transaction must have occurred, (iii) a Customer must remain a customer during the locking period in the Affiliate Dashboard (or if applicable, in the Program Policies).
You are not eligible to receive Commission or any other compensation from us based on transactions for Other Products or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program Policies that we make available to you, misuse of the Affiliate Dashboard or by any other means that we deem to breach the spirit of the Affiliate Program. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link or Coupon Code that we make available to you and are accepted by Outright Fitness. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination:
(i) it is a new customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our reasonable discretion. If an Affiliate Lead does not purchase the Subscription Service within the time period described on the Affiliate Dashboard (or if applicable, in the Program Policies) of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired.
An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated.
Engagement with Prospects.
Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between Outright Fitness and an Affiliate Lead will be at Outright Fitness’s discretion.
Commission and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (accepted by submission of affiliate program application); (ii) have a valid and up-to-date payment method in the Affiliate Dashboard with such account (iv) completed any and all required tax documentation in order for the Affiliate Dashboard to process any payments that may be owed to you.
Commission Payment. We will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to in our discretion).
Taxes. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
Commission Amounts. We reserve the right to alter or change the Commission amount as per the Affiliate Dashboard.
Training and Support. We may make available to you, without charge, various webinars and other resources as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training as we recommend and may make available to you from time-to-time.
We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.
Trademarks. You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Dashboard, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with our vendor kit and Trademark Usage Guidelines; and (iv) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
Outright Fitness’s Proprietary Rights.
No license to any software is granted by this Agreement. The Outright Fitness Products are protected by intellectual property laws. The Outright Fitness Products belong to and are the property of us or our licensors (if any). We retain all ownership rights of the Outright Fitness Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Outright Fitness Content, or the Outright Fitness Products in whole or in part, by any means, except as expressly authorized in writing by us.
Customer’s Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer portal associated with the Outright Fitness Products. For the avoidance of doubt, Customer will own and retain all rights to the Customer Data.
Opt Out and Unsubscribing. You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
Term and Termination
Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
Termination Without Cause. Both you and we may terminate this Agreement with thirty (30) days written notice to the other party.
Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement with written notice to us, provided that you send us written notice within fourteen (14) days after we send you notice of the change.
Termination for Cause. We may terminate this Agreement:
(i) upon fourteen (14) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period,
(ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors,
(iii) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is received by us within thirty (30) days after the date of such termination or expiration.
Upon termination or expiration, you will discontinue all use of the Affiliate Dashboard that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.
Affiliate Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision Outright Fitness with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program); (ii) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (iv) you will not attempt to mask the referring URL information; (v) you will not use your own Affiliate Link to purchase Outright Fitness products for yourself; and (vi) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames).
Pay-per-click (“PPC”) Restrictions. Unless Company first gives you written permission, you agree to abide by the following restrictions:
- You may not bid on any of our restricted terms (defined below) for search or content-based campaigns on Google, Bing, Yahoo, Capterra, Facebook or any other such networks.
- “Restricted Terms” is any term or sequence of terms containing the word “Outright Fitness” or “Outright Fitness App”.
- You may not use our restricted terms as your title, ad copy, display name or display URL.
- You may not use any of our Restricted Terms as part of a domain or subdomain for our website.
- You may not direct links from any PPC advertisement to the site or use redirects that get the same result. Customers should be directed to a genuine page on your website. You cannot bid for any search term in any auction-style PPC advertising program in any way that looks more than us.
- If you will automate your PPC campaigns, it is solely your responsibility to exclude the terms of your trademark from your marketing and related activities and we strongly suggest that you add our trademark terms as negative keywords.
Social Media Restrictions. When advertising or promoting the Referral Program on any social media platform including, but not limited to, Facebook, Twitter, Instagram, YouTube, or Pinterest, you indicate and warrant that you will comply with the following requirements:
- You are prohibited from posting your links on Company’s social media accounts or pages in an effort to convert those links into Affiliate sales.
- You are prohibited from creating a social media account that includes our trademark or Restricted Terms in the page name and/or Affiliate name.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Disclaimers; Limitations of Liability
Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE OUTRIGHT FITNESS PRODUCTS, OUTRIGHT FITNESS CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE DASHBOARD FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE DASHBOARD MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE OUTRIGHT FITNESS PRODUCTS AND AFFILIATE DASHBOARD ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE OUTRIGHT FITNESS PRODUCTS AND THE AFFILIATE DASHBOARD INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO NOT HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
Affiliate Dashboard. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE DASHBOARD THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE DASHBOARD AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE DASHBOARDHAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, OUTRIGHT FITNESS SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.
Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Dashboard and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Dashboard have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version at https://OutrightFitnessApp.com/affiliate-program-agreement. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
Applicable Law. This Agreement shall be governed by the laws of Texas, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Austin, Texas.
Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Outright Fitness Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Outright Fitness Products to prohibited countries or individuals or permit use of the Outright Fitness Products by prohibited countries or individuals.
Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To Outright Fitness, LLC.: Outright Fitness, LLC. 15508 Bratton Ln. Ste. 525, Austin, Texas U.S.A. Attention: General Counsel
To you: your address as provided in our affiliate account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls or text message to the telephone numbers on record in our account information for you.
Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Outright Fitness Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Outright Fitness Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Program Policies Page. We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference.
No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Outright Fitness Products, our trademarks, or any other property or right of ours.
Sales by Outright Fitness. This Agreement shall in no way limit our right to sell the Outright Fitness Products, directly or indirectly, to any current or prospective customers.
Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.
Data Processing and Protection. The parties acknowledge that in connection with the Affiliate Program, each party may provide or make available to the other party Personal Data. For the avoidance of doubt and without prejudice to the foregoing, Outright Fitness shall be an independent controller of any Personal Data that it receives or shares with Affiliate.
Outright Fitness Affiliate Program Policies
All Outright Fitness Affiliates are required to complete agreement and remain in compliance with these terms. This list contains everything you need to know to be an Outright Fitness affiliate, including resources, recommendations, and some fun legal stuff.
If you’re not yet part of the Outright Fitness Affiliate Program, you can apply here.
If you ever need anything else or have questions, feel free to reach out to the team at fitapp@OutrightFitnessApp.com
Last Modified: December 29, 2023
Commission rate: Available commissions are set forth in the Affiliate Dashboard. Commissions are based on purchase, and purchase commissions are set at our discretion and displayed in the Affiliate Dashboard.
For purchase commissions, you will receive commission for the first purchase made by a new customer who is not in an active sales process with us at the time of the affiliate link click.
The customer needs to be an active customer, after a 7-day free trial period.
Affiliate links may rely on cookies to track referrals. Therefore if cookies get cleared, we may not be able to track these events.
Cookie windows may vary.
Only affiliate links and coupon codes can be used to track referrals. Incorrect use of affiliate links or coupon codes will cause inability to track referrals.
There are a number of other limitations that may result in commission not being paid – we encourage you to read the Affiliate Program Agreement for more information on this.
Upgrades/downgrades: You do not receive additional commission if a customer upgrades to a higher tiered product in the future. If a customer downgrades, you will receive the commission associated with that downgrade.
Attribution: In the event a single customer clicks two different affiliate links, the last affiliate gets the credit. We do, however, reserve the right to modify this in certain circumstances.
Promoting Outright Fitness
- Outright Fitness branding
Do: Make “Out” and “right”, one word. This is important to maintaining consistent branding. You must follow our vendor kit, our Trademark Usage Guidelines here, and our Content Usage Guidelines here.
Do Not: Use false, gimmicky or misleading statements on the benefits of using Outright Fitness (e.g. “Lose 30lbs in 30 days with Outright Fitness!”). Do not modify or adjust the Outright Fitness wordmark in any sort of marketing material you might create, including the creation of any visual badges or dual-logo lockups.
- What to call yourself
As we have multiple ways to partner with Outright Fitness and several ways to reference those relationships, here are some guidelines around what you can and cannot call yourself within the Outright Fitness Affiliate Program.
Do: Say you’re a “Outright Fitness Affiliate” or “Affiliate Marketer”.
Do Not: Refer to yourself as a Partner or that you’ve “partnered with Outright Fitness.” This includes press releases, references in videos, listings on your website, or in any other marketing material you may be using.
- Buying ads
You will not purchase ads that direct to your site(s) or through an affiliate link that could be considered as competing with Outright Fitness’s own advertising, including, but not limited to, our branded keywords. If running ads, you need to direct the ad to your own website (and not to outrightfitnessapp.com or a standalone landing page).
Policies that don’t fit into the other buckets:
Sharing placements: When requested, you’ll share the places you’ve used your affiliate link. This includes, but is not limited to, links, screenshots, and email sends.
Purchasing an Outright Fitness App service yourself: One of the benefits of the Affiliate Program is we don’t require you to purchase Outright Fitness App products. Though if you decide to purchase, we require that you do not use your own affiliate link.
FTC disclosure: You must be FTC compliant and disclose in a clear way before the affiliate link that you will receive commission if someone clicks through and purchases.