Last Updated: September 25th, 2019

1. Scope of FitTripper Services

1.1 These Terms of Service constitute a binding agreement between you and FitTripping, Inc., d/b/a FitTripper, a Delaware corporation with an address at 228 E. 45th Street, New York, NY, 10017 (“FitTripping” or “FitTripper”).

1.2 The FitTripper Platform is an online marketplace that enables registered users who are owner/operators of gymnasium and/or wellness club facilities (“Wellness Service Providers”) to offer limited-time passes (“Passes”) for gymnasium and/or wellness services (“Wellness Services”) published through the FitTripper Platform (“Listings”) and offered to users who are separately registered with FitTripper in order to seek such Wellness Services (“Guests”, collectively with Wellness Service Providers known as “Members”).

1.3 As the provider of the FitTripper Platform, FitTripper does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Wellness Services. Wellness Service Providers alone are responsible for their Listings and Wellness Services. When Guests book a Pass, they are entering into a contract directly with the Wellness Service Provider. FitTripper is not and does not become a party to or other participant in any contractual relationship between Wellness Service Providers and Guests. FitTripper is not acting as an agent in any capacity for any Wellness Service Provider or Guest, except as specified herein.

1.4 If you choose to use the FitTripper Platform as a Wellness Service Provider your relationship with FitTripper is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of FitTripper for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of FitTripper. FitTripper does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Wellness Services. You acknowledge and agree that you have complete discretion whether to list Wellness Services or otherwise engage in other business or employment activities.

1.5 Due to the nature of the Internet, FitTripper cannot guarantee the continuous and uninterrupted availability and accessibility of the FitTripper Platform. FitTripper may restrict the availability of the FitTripper Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the FitTripper Platform. FitTripper may improve, enhance and modify the FitTripper Platform and introduce new FitTripper Services from time to time.

2. Eligibility, Using the FitTripper Platform, Member Verification

2.1 In order to access and use the FitTripper Platform or register a FitTripper Account you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts.

2.2 You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) neither you nor your Wellness Service Provider Service(s) are located or take place in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

2.3 FitTripper may make access to and use of the FitTripper Platform, or certain areas or features of the FitTripper Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a Member’s usage history.

2.4 For transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to, (i) ask Member’s to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Member’s, (ii) screen Member’s against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions registration or an equivalent version of background checks in your local jurisdiction (if available).

2.5 The access to or use of certain areas and features of the FitTripper Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the FitTripper Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the FitTripper Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.

3. Modification of these Terms

3.1 FitTripper reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the FitTripper Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the FitTripper Platform will constitute acceptance of the revised Terms.

4. Account Registration

4.1 You must register an account (“FitTripper Account”) to access and use the features of the FitTripper Platform, such as submitting a Listing. If you are registering a FitTripper Account for a business, organization or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.

4.2 You can register a FitTripper Account using an email address and creating a password. You must also include the first and last name of your Wellness Service Provider’s contact person, the full legal name of the company that operates your Wellness Services, and a valid telephone number for contact purposes.

4.3 You must provide accurate, current and complete information during the registration process and keep your FitTripper Account and public FitTripper Account profile page information up-to-date at all times.

4.4 You may not register more than one (1) FitTripper Account unless FitTripper authorizes you to do so. You may not assign or otherwise transfer your FitTripper Account to another party.

4.5 You are responsible for maintaining the confidentiality and security of your FitTripper Account credentials and may not disclose your credentials to any third party. You must immediately notify FitTripper if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your FitTripper Account. You are liable for any and all activities conducted through your FitTripper Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).

5. Content

5.1 FitTripper may, at its sole discretion, enable Members to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the FitTripper Platform (“Member Content”); and (ii) access and view Member Content and any content that FitTripper itself makes available on or through the FitTripper Platform, including proprietary FitTripper content and any content licensed or authorized for use by or through FitTripper from a third party (“FitTripper Content” and together with Member Content, “Collective Content”).

5.2 The FitTripper Platform, FitTripper Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the FitTripper Platform and FitTripper Content, including all associated intellectual property rights, are the exclusive property of FitTripper and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the FitTripper Platform, FitTripper Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of FitTripper used on or in connection with the FitTripper Platform and FitTripper Content, including without limitation the trademark FITTRIPPER™ are trademarks or registered trademarks of FitTripper in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the FitTripper Platform, FitTripper Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.

5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the FitTripper Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by FitTripper or its licensors, except for the licenses and rights expressly granted in these Terms.

5.4 Subject to your compliance with these Terms, FitTripper grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s) and/or to access the Application via a web browser; and (ii) access and view any Collective Content made available on or through the FitTripper Platform and accessible to you, solely for your personal and non-commercial use.

5.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the FitTripper Platform, you grant to FitTripper a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the FitTripper Platform, in any media or platform. Insofar as Member Content (including Verified Images) includes personal information, such Member Content will only be used for these purposes if such use complies with applicable data protection laws in accordance with our Privacy Policy. Unless you provide specific consent, FitTripper does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.

5.6 You are solely responsible for all Member Content that you make available on or through the FitTripper Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the FitTripper Platform or you have all rights, licenses, consents and releases that are necessary to grant to FitTripper the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or FitTripper’s use of the Member Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

5.7 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any FitTripper policy. FitTripper may, without prior notice, remove or disable access to any Member Content that FitTripper finds to be in violation of applicable law, these Terms or FitTripper’s then-current policies and/or standards, or otherwise may be harmful or objectionable to FitTripper, its Members, third parties, or property.

5.8 FitTripper respects copyright law and expects its Members to do the same. If you believe that any content on the FitTripper Platform infringes copyrights you own, please notify us in accordance with our DMCA Takedown Policy, located at the end of these Terms.

6. FitTripper’s Service Fees

6.1 FitTripper reserves the right to charge each Wellness Service Provider different amounts for different levels of usage of the FitTripper Platform and/or for bookings facilitated via the FitTripper Platform. Those plans and fees would be mutually agreed upon between FitTripper and the Wellness Service Providers and included in either an updated version of these Terms of Service and/or in a Business Terms documents that will serve as a supplement to this agreement.

6.2 Except as otherwise provided on the FitTripper Platform, Service Fees are non-refundable.

7. Wellness Service Provider Listing Terms

7.1 Terms applicable to all Listings

7.1.1 When creating a Listing through the FitTripper Platform you must (i) provide complete and accurate information about your Wellness Service (such as listing description, location, hours of operation, and calendar availability), (ii) disclose any deficiencies, restrictions (such as house rules) and requirements that apply (such as any minimum age, proficiency or fitness requirements) and (iii) provide any other pertinent information requested by FitTripper. You are responsible for keeping your Listing information (including calendar availability) up-to-date at all times.

7.1.2 You are solely responsible for setting a price (in the currency of your facility’s country location, including any Taxes if applicable) for your Listing (“Listing Price”). Once a Guest pays your requested fee to FitTripper, you may not request that the Guest pays a higher price than in your original Listing.

7.1.3 Any terms and conditions included in your Listing, in particular in relation to cancellations, must not conflict with these Terms or the relevant cancellation policy for your Listing.

7.1.4 Pictures, animations or videos (collectively, “Images”) used in your Listings must accurately reflect the quality and condition of your Wellness Services and facilities. FitTripper reserves the right to require that Listings have a minimum number of Images of a certain format, size and resolution.

7.1.5 The placement and ranking of Listings in search results on the FitTripper Platform may vary and depend on a variety of factors, such as Guest search parameters and preferences, Wellness Service Provider requirements, price and calendar availability, number and quality of Images, customer service and cancellation history, Reviews and Ratings, type of Wellness Service Provider Service, and/or ease of booking.

7.1.6 When you offer a Pass for purchase and a Guest purchases that Pass, you are entering into a legally binding agreement with the Guest and are required to provide access to your Wellness Service(s) to the Guest as described in your Listing when the Pass was purchased.

7.1.7 FitTripper recommends that Wellness Service Providers obtain appropriate insurance for their Wellness Services and facilities. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests (and the individuals the Guest has booked for, if applicable) while using your facility.

7.2 Listing Wellness Service Providers

You represent and warrant that any Wellness Services Listing you post and the booking of, or a Guest’s visit to/for, such Wellness Services will (i) not breach any agreements you have entered into with any third parties, and (ii) comply with all applicable laws (such as zoning laws), Tax requirements, and other rules and regulations (including having all required permits, licenses and registrations). As a Wellness Service Provider, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who are present for your Wellness Services and/or are at the facility where they are conducted at your request or invitation, excluding the Guest.

8. Booking Modifications, Cancellations and Refunds, Payment to You

8.1 Once a Pass is purchased through the FitTripper Platform, you may not make any modifications thereto.

8.2 Guests can cancel a Pass in keeping with FitTripper’s then-current cancellation policy, and FitTripper will refund the amount of the Total Fees due to the Guest in accordance with such cancellation policy.

8.3 Any payments due to you hereunder shall be paid by FitTripper to you no later than seven (7) days after the end of each month during the Term hereof. FitTripper is only obligated to make payments to you for Passes that have been used during each month. A Pass is not considered used until it has been checked in through the FitTripper Platform pursuant to the then-current procedure set forth on the FitTripper Platform.

8.4 Payments due to Wellness Service Providers hereunder shall be made net of any and all fees charged by payment processors, debit and/or credit card operators, and other intermediaries.

8.5 FitTripper is not and cannot be responsible for any variance of exchange rates managed by different financial institutions or changes over incremental time for such rates.

9. Ratings and Reviews

9.1 Within a certain timeframe after completing a booking, Guests can leave a public review (“Review”) and submit star ratings (“Rating”) about a Wellness Service Provider. Ratings or Reviews reflect the opinions of individual Members and do not reflect the opinion of FitTripper. Ratings and Reviews are not verified by FitTripper for accuracy and may be incorrect or misleading.

9.2 Wellness Service Providers are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Wellness Service Provider.

10. Taxes

10.1 As a Wellness Service Provider you are solely responsible for determining your obligations to report, collect, remit or include in your Listing Prices any applicable VAT or other indirect sales taxes, Tax, tourist or other visitor taxes or income taxes (“Taxes”).

10.2 Tax regulations may require us to collect appropriate Tax information from Wellness Service Providers, or to withhold Taxes from payouts to Wellness Service Providers, or both. If a Wellness Service Provider fails to provide us with the required documentation under applicable law (e.g., a tax number) that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to withhold payouts up to the tax-relevant amount as required by law, until resolution.

10.3 You understand that any appropriate governmental agency, department and/or authority (“Tax Authority”) where your Wellness Service Provider is located may require Taxes to be collected from Guests or Wellness Service Providers on Listing Prices, and to be remitted to the respective Tax Authority.

11. Prohibited Activities

11.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the FitTripper Platform. In connection with your use of the FitTripper Platform, you will not and will not assist or enable others to:

breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, policies, and/or standards;
use the FitTripper Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies FitTripper endorsement, partnership or otherwise misleads others as to your affiliation with FitTripper;
copy, store or otherwise access or use any information, including personally identifiable information about any Guest, contained on the FitTripper Platform in any way that is inconsistent with FitTripper’s Privacy Policy or these Terms or that otherwise violates the privacy rights of Guests or third parties;
use the FitTripper Platform in connection with the distribution of unsolicited commercial messages (“spam”);
offer, as a Wellness Service Provider, any facility that you do not yourself own or have permission to make available;
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
use, display, mirror or frame the FitTripper Platform or Collective Content, or any individual element within the FitTripper Platform, FitTripper’s name, any FitTripper trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the FitTripper Platform, without FitTripper’s express written consent;
dilute, tarnish or otherwise harm the FitTripper brand in any way, including through unauthorized use of Collective Content, registering and/or using FitTripper or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to FitTripper domains, trademarks, taglines, promotional campaigns or Collective Content;
use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the FitTripper Platform for any purpose;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by FitTripper or any of FitTripper’s providers or any other third party to protect the FitTripper Platform;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the FitTripper Platform;
take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the FitTripper Platform;
export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
violate or infringe anyone else’s rights or otherwise cause harm to anyone.

11.2 You acknowledge that FitTripper has no obligation to monitor the access to or use of the FitTripper Platform by any Member or to review, disable access to, or edit any Member Content, but has the right to do so to (i) operate, secure and improve the FitTripper Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Members’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Member Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Members agree to cooperate with and assist FitTripper in good faith, and to provide FitTripper with such information and take such actions as may be reasonably requested by FitTripper with respect to any investigation undertaken by FitTripper or a representative of FitTripper regarding the use or abuse of the FitTripper Platform.

11.3 If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to FitTripper by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).

12. Term and Termination, Suspension and other Measures

12.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or FitTripper terminate the Agreement in accordance with this provision.

12.2 You may terminate this Agreement at any time by sending us an email. If you cancel your FitTripper Account as a Wellness Service Provider, it is your responsibility as to whether or not to refund Fees paid by Guests for unused Passes for your Wellness Services. If you choose not to refund such Fees, you hereby agree to continue to provide Services to all Guests who hold Passes for your Wellness Services.

12.3 Without limiting our rights specified below, FitTripper may terminate this Agreement for convenience at any time by giving you thirty (30) days’ notice via email to your registered email address.

12.4 FitTripper may immediately, without notice, terminate this Agreement and/or stop providing access to the FitTripper Platform if (i) you have materially breached your obligations under these Terms, or any of our other policies, (ii) you have violated applicable laws, regulations or third party rights, or (iii) FitTripper believes in good faith that such action is reasonably necessary to protect the personal safety or property of FitTripper, its Members, or third parties (for example in the case of fraudulent behavior of a Member).

12.5 In addition, FitTripper may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, or any of our other policies, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the FitTripper Account registration, Listing process or thereafter, (iv) you and/or your Listings or Wellness Services at any time fail to meet any applicable quality or eligibility criteria, (v) you have repeatedly received poor Ratings or Reviews or FitTripper otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly not honored or adequately processed Passes, or (vii) FitTripper believes in good faith that such action is reasonably necessary to protect the personal safety or property of FitTripper, its Members, or third parties, or to prevent fraud or other illegal activity:

refuse to surface, delete or delay any Listings, Ratings, Reviews, or other Member Content;
cancel any pending or confirmed bookings;
limit your access to or use of the FitTripper Platform;
temporarily or in case of severe or repeated offenses permanently suspend your FitTripper Account and stop providing access to the FitTripper Platform.

In case of non-material breaches and where appropriate, you will be given notice of any intended measure by FitTripper and an opportunity to resolve the issue to FitTripper’s reasonable satisfaction.

12.6 If we take any of the measures described above we may refund your Guests in full for any and all confirmed bookings that have been cancelled, irrespective of preexisting cancellation policies.

12.7 When this Agreement has been terminated, you are not entitled to a restoration of your FitTripper Account or any of your Member Content. If your access to or use of the FitTripper Platform has been limited or your FitTripper Account has been suspended or this Agreement has been terminated by us, you may not register a new FitTripper Account or access and use the FitTripper Platform through an FitTripper Account of another Member.

12.8 Sections 5, 11, 13, 14, 15 and 16 of these Terms shall survive any termination or expiration of this Agreement.

13. Disclaimers

If you choose to use the FitTripper Platform or Collective Content, you do so voluntarily and at your sole risk. The FitTripper Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.

You agree that you have had whatever opportunity you deem necessary to investigate the FitTripper Services, laws, rules, or regulations that may be applicable to your Listings and/or Wellness Services you are receiving and that you are not relying upon any statement of law or fact made by FitTripper relating to a Listing.

The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

14. Liability

You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the FitTripper Platform and Collective Content, your publishing or booking of any Listing via the FitTripper Platform, your use of any Wellness Service Provider or Wellness Service Provider Service, participation in any Experience or Event or use of any other Wellness Service Provider Service, participation in the Group Payment Service, or any other interaction you have with other Members whether in person or online remains with you. Neither FitTripper nor any other party involved in creating, producing, or delivering the FitTripper Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the FitTripper Platform or Collective Content, (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the FitTripper Platform, or (iv) from your publishing or booking of a Listing, including the provision or use of a Listing’s Wellness Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not FitTripper has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Wellness Service Providers pursuant to these Terms or an approved payment request under the FitTripper Wellness Service Provider Guarantee, in no event will FitTripper’s aggregate liability arising out of or in connection with these Terms and your use of the FitTripper Platform including, but not limited to, from your submission of your Wellness Service Provider Listing(s) via the FitTripper Platform, or from the use of or inability to use the FitTripper Platform or Collective Content and in connection with any interactions with any other Members, exceed the amounts paid by FitTripper to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between FitTripper and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect FitTripper’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.

15. Indemnification

To the maximum extent permitted by applicable law, you agree to release, defend (at FitTripper’s option), indemnify, and hold FitTripper and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the FitTripper Platform or any FitTripper Services, (iii) FitTripper’s Collection and Remittance of Taxes, or (iv) your breach of any laws, regulations or third party rights.

16. Dispute Resolution and Arbitration Agreement

16.1 This Dispute Resolution and Arbitration Agreement shall apply if your (i) country of residence or establishment is in the United States; or (ii) your country of residence or establishment is not in the United States, but bring any claim against FitTripper in the United States (to the extent not in conflict with Section 21).

16.2 Overview of Dispute Resolution Process. These Terms provide for a two-part process for individuals to whom Section 16.1 applies: (1) an informal negotiation directly with FitTripper’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 16 and except as provided in Section 16.6). Specifically, the Consumer Arbitration Rules provide:

Claims can be filed with AAA online (www.adr.org);
Arbitrators must be neutral and no party may unilaterally select an arbitrator;
Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
Parties retain the right to seek relief in small claims court for certain claims, at their option;
The initial filing fee for the consumer is capped at $200;
The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.

16.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and FitTripper each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact FitTripper’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

16.4 Agreement to Arbitrate. You and FitTripper mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the FitTripper Platform, the Wellness Services, or the Collective Content (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and FitTripper agree that the arbitrator will decide that issue.

16.5 Exceptions to Arbitration Agreement. You and FitTripper each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

16.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.

16.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, FitTripper agrees that any required arbitration hearing shall be conducted, (a) in New York County, New York, U.S.A.; (b) in any other location to which you and FitTripper both agree; (c) via phone or video conference; or (d) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.

16.8 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

16.9 Jury Trial Waiver. You and FitTripper acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.

16.10 No Class Actions or Representative Proceedings. You and FitTripper acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and FitTripper both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 16.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 16.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and FitTripper agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.

16.11 Severability. Except as provided in Section 16, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

16.12 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if FitTripper changes this Section 16 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of FitTripper’s email to you notifying you of such change. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and FitTripper (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and FitTripper.

16.13 Survival. Except as otherwise provided herein, this Section 16 will survive any termination of these Terms and will continue to apply even if you stop using the FitTripper Platform or terminate your FitTripper Account.

17. Applicable Law and Jurisdiction

17.1 These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to conflict-of-law provisions.

18. General Provisions

18.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between FitTripper and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between FitTripper and you in relation to the access to and use of the FitTripper Platform.

18.2 No joint venture, partnership, employment, or agency relationship exists between you and FitTripper as a result of this Agreement or your use of the FitTripper Platform.

18.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.

18.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.

18.5 FitTripper’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

18.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without FitTripper’s prior written consent. FitTripper may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.

18.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be provided electronically and given by FitTripper via email, FitTripper Platform notification, or messaging service (including SMS).

18.8 If you have any questions about these Terms please email support@FitTripper.com

FitTripping, Inc. DMCA Takedown Policy

FitTripper is an online service provider as defined in the Digital Millennium Copyright Act. We provide legal copyright owners with the ability to self-publish on the internet by uploading, storing and displaying various media utilizing our services. We do not monitor, screen or otherwise review the media which is uploaded to our servers by users of the service. We take copyright violation very seriously and will vigorously protect the rights of legal copyright owners. If you are the copyright owner of content which appears on the FitTripper Platform and you did not authorize the use of the content you must notify us in writing in order for us to identify the allegedly infringing content and take action.

You may make a written notice via email, facsimile or postal mail to our DMCA agent listed below. Your written notice must include the following:

A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner which expressly claims an exclusive right that is allegedly being infringed.
Specific identification of the copyrighted work which you are alleging to have been infringed. If you are alleging infringement of multiple copyrighted works with a single notification you must submit a representative list which specifically identifies each of the works that you allege are being infringed.
Specific identification of the location and description of the material that is claimed to be infringing or to be the subject of infringing activity with enough detailed information to permit FitTripper to locate the material. You should include the specific URL or URLs of the web pages where the allegedly infringing material is located, or screenshots of mobile app uses.
Information reasonably sufficient to allow FitTripper to contact the complaining party which may include a name, address, telephone number and electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has 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.
A statement that the information in the notification is accurate, and under penalty of perjury that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please also note that under applicable law, 17 U.S.C. 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

FitTripper’s DMCA agent can be contacted at robkrieger@fittripper.com

Go to www.fittripper.com