Terms & Conditions
YOU UNDERSTAND AND AGREE THAT PLAYFITNESS DOES NOT PROVIDE THE SERVICES DESCRIBED ON THE SITE AND IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PROVIDERS AND THEIR CUSTOMERS, NOR IS PLAYFITNESS AN AGENT OR INSURER AND IS IN NO WAY RESPONSIBLE FOR THE ACTIONS OF ANY PROVIDER OR CUSTOMER. PLAYFITNESS HAS NO CONTROL OVER THE CONDUCT OF PROVIDERS AND CUSTOMERS AND DISCLAIMS ALL LIABILITY FOR ANY AND ALL ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES, ACTUAL AND CONSEQUENTIAL, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUFFERED OR CLAIMED BY ANY USER OR MEMBER. THE SITE AND SERVICES ARE INTENDED TO BE USED SOLELY TO FACILITATE THE USE OF SERVICES FOR AND BY MEMBERS. PLAYFITNESS CANNOT AND DOES NOT CONTROL OR REVIEW THE CONTENT CONTAINED IN ANY LISTINGS NOR THE CONDITION, LEGALITY OR SUITABILITY OF ANY SERVICES. PLAYFITNESS IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND SERVICES. ANY USE OF THE SITE IS AT THE SOLE AND EXCLUSIVE RISK OF THE USER, MEMBER, PROVIDER OR CUSTOMER, AS APPLICABLE. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE.
“Playfitness Content” means all Content that Playfitness makes available through the Site, including any Content licensed from a third party, but excluding Member Content.
“Collective Content” means Member Content and Playfitness Content.
“Content” means text, graphics, images, music, software, audio, video, information, documents, information regarding Members, plans, components, parts, artwork, drawings, data, sketches, programs, specifications, techniques, processes, software, inventions and other materials.
“Member” means a person who completes Playfitness’s account registration process, including, but not limited to Providers and Customers, as described under “Account Registration” below.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site or through delivery of the Services.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal indirect or other withholding and personal or corporate income taxes.
Certain areas of the Site (and your access to or use of certain aspects of Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services, or any Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or Collective Content, as applicable. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Playfitness reserves the right, at its sole discretion, to modify the Platform, the Site, the Collective Content available on the Site, or the Services which may be offered by a Provider on the Site or to modify these Terms, including fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
The Site is intended solely for persons who are 18 or older. Any access to or use of the Site by anyone under 18 is expressly prohibited. By accessing or using the Site you represent and warrant that you are 18 or older.
How the Site Works
The Site can be used to facilitate the listing and booking of Services from a Provider. Such Services are included in Listings on the Site. You may view Listings as an unregistered visitor to the Site; however, if you wish to book Services or create a Listing, you must first register and create a Playfitness Account (defined below).
In order to access certain features of the Site, to book Services or create a Listing, you must register to create an account (“Playfitness Account”) and become a Member. You may register directly via the Site or register to join by logging into your account with certain third party social networking sites (each, a “SNS”), including, but not limited to, Facebook (each such third party account, a “Third Party Account”) via the Site. As part of the functionality of the Site, you may link your Playfitness Account with a Third Party Account, by either: (i) providing your Third Party Account login information to Playfitness through the Site; or (ii) allowing Playfitness to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Playfitness and/or grant Playfitness access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Playfitness to pay any fees or making Playfitness subject to any usage limitations imposed by such third party service providers. By granting Playfitness access to any Third Party Accounts, you understand that Playfitness may access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”). Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Playfitness Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or Playfitness’ access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site. You have the ability to disable the connection between your Playfitness Account and your Third Party Accounts, at any time, by accessing the “Settings” section of the Site. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Playfitness makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Playfitness is not responsible for any SNS Content.
We will create your Playfitness Account and your Playfitness Account profile page for your use of the Site based upon the personal information you provide to us or that we obtain via a SNS as described above. You may not have more than one (1) active Playfitness Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Playfitness reserves the right to suspend or terminate your Playfitness Account and your access to the Site if you create more than one (1) Playfitness Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Playfitness Account, whether or not you have authorized such activities or actions. You will immediately notify Playfitness of any unauthorized use of your Playfitness Account.
Each Provider may create a Listing to be made publicly available via the Site. Members will be able to book your Services via the Site based upon the information provided in your Listing. You understand and agree that once a Member requests a booking of your Services, the price for such booking may not be altered.
You acknowledge and agree that you are solely responsible for the content of the Listing you post. Accordingly, you represent and warrant that any Listing you post and the booking of Services (i) will not breach any agreements you have entered into with any third parties (ii) will be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Services included in a Listing you post; and (iii) will not conflict with the rights of third parties. Please note that Playfitness assumes no responsibility for a Provider’s compliance with any applicable laws, rules and regulations. You understand and agree that Playfitness does not act as an insurer or as a contracting agent for, or representative of, you as a Provider, and if a Customer requests a booking of your Services, any agreement you enter into with such Customer is between you and the Customer and Playfitness is not a party thereto. Please note that Playfitness reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Playfitness, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site.
*** Playfitness recommends that Providers obtain appropriate insurance for their Services. Please review any insurance policy that you may have for your Services carefully, and in particular please 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 Customers (and the individuals the Customer invites to the Services, if applicable) while at your Services.
We reserve the right to terminate your Member status if you misuse the Site or violate these Terms including, without limitation, the following rules of conduct:
You may not:
• Upload, post, transmit to other Members by any means, or otherwise make available any content or materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
• Impersonate any person or entity, including another Member or any employee of Playfitness, or falsely state or otherwise misrepresent your affiliation with a person or entity;
• Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted;
• Upload, post, email, transmit to other Members by any means, or otherwise make available any content or materials that you do not have a right to make available under any law or under contractual or fiduciary relationships;
• Upload, post, email, transmit to other Members by any means, or otherwise make available any content or materials that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• Upload, post, transmit to other Member by any means, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
• Upload, post, email, transmit to other Members by any means, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• Attempt to interfere with or disrupt our servers or networks;
• Intentionally or unintentionally violate any applicable local, state, national or international law or any regulations having the force of law;
• "Stalk" or otherwise harass another; solicit, collect or post personal data or attempt to solicit, collect or post personal data about other Members or users, including user names or passwords; or access or attempt to access another Member’s account without his or her consent; and/or
• Post, disseminate, transmit or otherwise distribute your personal data or plan data on any website or through other digital, electronic or printed forum.
Playfitness will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Playfitness may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Playfitness has no obligation to monitor your access to or use of the Site, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Site, or if necessary to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Playfitness reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Playfitness, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site.
Playfitness does not endorse any Members. In addition, although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity. You are responsible for determining the identity and suitability of others who you contact via the Site. Except as provided in the Playfitness Provider Guarantee Terms and Conditions (“Playfitness Provider Guarantee”), which is an agreement between Playfitness and Providers, we will not be responsible for any damage or harm resulting from your interactions with other Members. (Please see Playfitness’s Provider Guarantee Terms and Conditions at www.Playfitness.com/terms-conditions for information about the Playfitness Provider Guarantee.) By using the Site, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Playfitness with respect to such actions or omissions. We encourage Members to communicate directly with other Members on the Site regarding any Services or Listings.
Bookings and Financial Terms
Bookings and Financial Terms for Providers
*** If you are a Provider and a booking is requested for your Services via the Site, you will be required to either confirm or reject the booking within 24 hours of when the booking is requested (the time of such booking request shall be determined by Playfitness in its sole discretion) or the booking request will be automatically booked. If you reject a booking of an Services within such 24 hour period, any amounts collected by Playfitness for the requested booking will be refunded to the applicable Customer’s credit card and any pre-authorization of such credit card will be released. Playfitness will send you an email, text message or notification message confirming such booking, depending on the selections you make via the Site.
*** The fees displayed in each Listing are the fees due and payable by a Customer as determined by a Provider for his or her Services (“Services Fees”). Please note that it is the Provider and not Playfitness which determines the Services Fees. Playfitness will collect the Services Fees at the time of booking confirmation (i.e. when the Provider confirms the booking within 24 hours of the booking request) and will remit the Services Fees (less Playfitness’s Site Fees (defined below)) to the Provider once a month.
Please note that Playfitness does not currently charge fees for the creation of Listings. However, you acknowledge and agree that Playfitness reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Playfitness will provide notice of any Listing fee collection via the Site prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Customers
The Providers, not Playfitness, are solely responsible for honoring any confirmed bookings and making available any Services reserved through the Site. If you, as a Customer, choose to enter into a transaction with a Provider for the booking of Services, you agree and understand that you will be required to enter into an agreement with the Provider and you agree to accept any terms, conditions, rules and restrictions associated with such Services imposed by the Provider. You acknowledge and agree that you, and not Playfitness, will be responsible for performing the obligations of any such agreements, and Playfitness is not a party to such agreements and disclaims all liability arising from or related to any such agreements.
Listings for Services will specify the Services Fees applicable to a booking. A Provider is required to either confirm or reject the booking within 24 hours of when the booking is requested (as determined by Playfitness in its sole discretion) or the requested booking will be automatically accepted. If a requested booking is cancelled, any amounts collected by Playfitness will be refunded to such Customer, depending on the selections the Customer makes via the Site and Application, and any pre-authorization of such Customer’s credit card will be released, if applicable.
You agree to pay Playfitness the Services Fees for any booking requested in connection with your Playfitness Account if such requested the applicable Provider confirms such booking. In order to establish a booking pending the applicable Provider’s confirmation of your requested booking, you understand and agree that Playfitness reserves the right, in its sole discretion, to collect the Services Fee in accordance with the terms and conditions of these Terms and the pricing terms set forth in the applicable Listing. Please note that Playfitness cannot control any fees that may be charged to a Customer by his or her bank related to Playfitness’s collection of the Services Fees, and Playfitness disclaims all liability in this regard.
In consideration for providing the Platform and maintaining the Site, Playfitness collects administrative fees from the Services Fees paid to Providers (“Site Fees”). Site Fees are charged as a percentage of the Services Fees collected. Site Fees are deducted from the Services Fees before remitting the Services Fees to the Provider.
Balances will be remitted to Providers via check, PayPal, direct deposit or other payment methods described on the Site, in the Provider’s currency of choice, depending upon the selections the Provider makes via the Site. Please note that for any payments by Playfitness in currencies other than U.S. dollars, Playfitness may deduct foreign currency processing costs from such payments. More information on foreign currency processing cost deductions is available on the Site or by contacting Playfitness. Except as otherwise provided herein, Site Fees are non-refundable.
General Booking and Financial Terms
Cancellations and Refunds
As a Customer, if you decide to cancel your requested booking within 24 hours after booking a training session, Playfitness will refund any Services Fees collected for such requested booking within a commercially reasonable time. If a customer wishes to cancel a booking after 24 hours period, the cancellation policy of the Provider contained in the applicable Listing will apply to such cancellation. We do not issue credits or refunds for missed training sessions.
If a Provider cancels a confirmed booking made via the Site, (i) Playfitness will refund the Services Fees for such booking to the applicable Customer within a commercially reasonable time of the cancellation and (ii) the Customer will receive an email or other communication from Playfitness containing alternative Listings and other related information. If the Customer requests a booking from one of the alternative Listings and the Provider associated with such alternative Listing confirms the Customer’s requested booking, then the Customer agrees to pay Playfitness the Services Fees relating to the confirmed booking for the Services in the alternative Listing, in accordance with these Terms. If a Provider cancelled a confirmed booking and you, as a Customer, have not received an email or other communication from Playfitness, please contact Playfitness at firstname.lastname@example.org.
No Refund or Credit for Missed Sessions
Some Providers may pledge to donate a portion of the funds they receive from confirmed bookings made via the Site to a particular cause or charity. We do not control, and will not take any responsibility or liability for, whether the Provider does in fact make the donation he or she pledged to make.
IRS regulations regarding federal Tax reporting requirements require that Playfitness collect IRS Form W-9 from all Providers in the United States. You understand and agree notwithstanding the collection of information for federal tax reporting, that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your tax advisors. Playfitness cannot and does not offer Tax-related advice to any Members of the Site. Additionally, please note that each Provider is responsible for determining local indirect Taxes and for including any applicable Taxes to be collected or obligations relating to applicable Taxes in Listings. Where applicable, or based upon request from a Provider, Playfitness may issue a valid VAT invoice to such Provider.
As part of the Services, Playfitness provides a feature through which Members may view Fees for various Listings in foreign currencies. You understand and agree that these views of Fees are for informational purposes only and are not the official Fees for the Listings. If you (as a User) request a booking, you will be notified of the currency in which you will be charged together with the corresponding amount of Services Fees, if your booking is confirmed by a Provider. The currency in which you will be charged will be determined by Playfitness based on the payment method you select and the location of the Services in the Listing you are booking. If the currency in which you will be charged is different from the currency chosen by the Provider to receive payment, Playfitness will be responsible for the required currency conversion processing, including the costs thereof, which will be calculated based on the most current applicable foreign exchange rate that Playfitness has uploaded to the Site as of the date and time that your booking is confirmed (the “Applicable Exchange Rate”). You acknowledge that the Applicable Exchange Rate used for currency conversion processing may not be identical to the applicable market rate in effect at the specific time such processing occurs because: (i)although Playfitness updates the Applicable Exchange Rate on a regular basis, it does not update such rate on a real-time basis; and (ii) the Applicable Exchange Rate may include an incremental cost or margin that is not included in the applicable market rate. For the avoidance of doubt, Playfitness will retain any profits (and will bear any losses) that result from such currency conversion processing due to changes in the applicable foreign exchange rate between the date your booking is confirmed and the date Playfitness makes payment to a Provider.
The Site and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site and all Playfitness Content, including all associated intellectual property rights is the exclusive property of Playfitness and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, including any Collective Content.
Playfitness Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Playfitness grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Playfitness Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site or Collective Content, except 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 Playfitness or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, you hereby grant to Playfitness a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of the Site. Playfitness does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site or you have all rights, licenses, consents and releases that are necessary to grant to Playfitness the rights in 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 Playfitness’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services 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.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Playfitness is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Playfitness of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Playfitness used herein are trademarks or registered trademarks of Playfitness. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site (“Feedback”). You may submit Feedback by emailing us at support@Playfitness.com or through the “Contact” ( www.Playfitness.com/contact ) section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of Playfitness and you hereby irrevocably assign to Playfitness and agree to irrevocably assign to Playfitness all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Playfitness’s request and expense, you will execute documents and take such further acts as Playfitness may reasonably request to assist Playfitness to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Playfitness respects copyright law and expects its users to do the same. It is Playfitness’s policy to terminate in appropriate circumstances the Playfitness Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Playfitness’s Copyright Policy at http://playfitness.com/terms-conditions, for further information.
Termination and Playfitness Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our Site, and (b) deactivate or cancel your Playfitness Account. Upon termination we will promptly pay you any amounts we reasonably determine we owe you in our discretion, which we are legally obligated to pay you. In the event Playfitness terminates these Terms, or your access to our Site or deactivates or cancels your Playfitness Account you will remain liable for all amounts due hereunder. You may cancel your Playfitness Account at any time via the “Cancel Account” feature of the Services or by sending an email to support@Playfitness.com. Please note that if your Playfitness Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, including, but not limited to, any reviews or Feedback.
DISCLAIMERS OF WARRANTIES.
YOU USE THE SITE AT YOUR OWN RISK. PLAYFITNESS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, TIMELINESS OR EFFICACY OF THE CONTENT OF THE SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES IN SUCH CONTENT. YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE SITE AND THE CONTENT AND SERVICES AVAILABLE THROUGH THE SITE IS ON AN "AS-IS", "AS AVAILABLE" BASIS AND PLAYFITNESS SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PLAYFITNESS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THIS SITE. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN PLAYFITNESS WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF 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 SITE AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY SERVICES VIA THE SITE, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF PLAYFITNESS WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER PLAYFITNESS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE 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 BODY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR FROM YOUR LISTING OR BOOKING OF ANY SERVICES VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PLAYFITNESS 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 PROVIDERS PURSUANT TO AN APPROVED PAYMENT REQUEST UNDER THE PLAYFITNESS PROVIDER GUARANTEE, IN NO EVENT WILL PLAYFITNESS’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY SERVICES VIA THE SITE, OR FROM THE USE OF OR INABILITY TO USE THE SITE OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY SERVICES OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE AS A USER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A PROVIDER, THE AMOUNTS PAID BY PLAYFITNESS TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($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 PLAYFITNESS 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.
You agree to release, defend, indemnify, and hold Playfitness and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, injury, suits, demands, bills, reckonings, judgments, costs and expenses (including death, dismemberment, and for damage to loss of property) and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of an Services, (iii) creation of a Listing or (iv) the use, including, but not limited to any injuries, losses, which may be suffered by the undersigned arising out of, or in any way connected with participation in PlayFitness.
Export Control and Restricted Countries
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site, you represent and warrant that (i) neither you nor your listed Services is located 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. You also will not use the Site for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Playfitness does not permit Listings associated with certain countries due to U.S. embargo restrictions.
If Provider anyone who you feel is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Playfitness by contacting us with your police station and report number at support@Playfitness.com; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between Playfitness and you regarding the Site, Services, Collective Content, and any bookings or Listings of Services made via the Site, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Playfitness and you regarding bookings or listings of Services, the Site, Services, or Collective Content.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Playfitness (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New York County, New York or a United States District Court, Southern District of New York located in Manhattan for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
Playfitness offers Dispute Resolution Services to Members. You agree and acknowledge that: (i) Playfitness is not providing legal services; (ii) Playfitness will not advise you regarding any legal matters; and (iii) if you desire to have legal counsel, you will seek an independent legal counsel from those licensed to practice law in your jurisdiction. You will not rely on Playfitness for any such counsel. In the event of a dispute between a Customer and a Provider regarding a return or release of Payments, either Customer or Provider may elect to use the Dispute Resolution Services offered by Playfitness. The Customer and Provider will then be notified that the matter will be addressed through the Dispute Resolution Services. You agree to indemnify and hold Playfitness and any of our affiliates harmless against any damages or liability you may suffer as a result of using the Milestone Payments and/or Dispute Resolution Services. Any disputes regarding arrangements between Providers and Customers remain solely between Customers and Providers. We are not involved in any transactions between you and any other Members of Playfitness and as a part of these Terms, you acknowledge and agree that Playfitness will not be a party to any such dispute and hereby release Playfitness from any and all claims, demands, and damages, actual and consequential, of every kind and nature, known and unknown, that is related to a dispute arising from any Services, any Listing or any other Member or user.
If you have any questions about these Terms or any App Store Sourced Application, please contact Playfitness at support@PlayFitness.com