LAST UPDATED: October 26, 2015
Prior to using the Phyzseek Service, it is important for you to know and understand that by visiting the Site, access the Application and/or using the Service, you are agreeing to accept certain liability limitations and legal and health disclaimers, which we further explain throughout this Agreement. In other words, your use of the Phyzseek Service is at your own risk, and we do not assume any liability, or make any warranties of any kind, express or implied, with respect to the Service or your use of the Service.
By using the Phyzseek Service, you consent to receiving this Agreement in electronic form and to all revisions thereof. To withdraw this consent, you must cease using the Service and terminate your account. Please contact us with any questions regarding this Agreement.
HEALTH WARNING AND LIABILITY DISCLAIMER:
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING THIS OR ANY OTHER EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING.
NOTHING STATED OR POSTED ON THE PHYZSEEK SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE.
YOUR USE OF THE PHYZSEEK SERVICE IS AT YOUR OWN RISK.
PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER BELOW BEFORE COMMENCING YOUR USE OF THE SERVICE.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THIS OR ANY OTHER EXERCISE OR NUTRITION PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, OR HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY.
Exercise is not without its risks, and this or any other exercise program may result in injury. aggravation of a pre-existing condition, or adverse effect of over-exertion such as muscle strain, abnormal blood pressure, fainting, disorders of heartbeat, and very rare instances of heart attack.
DO NOT USE THE PHYZSEEK SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.
THE PHYZSEEK SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED, POSTED OR AVAILABLE THROUGH ANY PHYZSEEK SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE PHYZSEEK SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.
IF YOU THINK YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.
THE PHYZSEEK SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND WFH MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION PROVIDED BY THE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
The Services are intended solely for users who are eighteen (18) years of age or older and it is a violation of the Terms for anyone under 18 to register for the Services. Thus, you represent and warrant that you are 18 or older. You MUST be at least 18 years of age to purchase any of our Services.
NOTICE TO PARENTS AND GUARDIANS: You are responsible for monitoring and supervising your child's use of the Phyzseek Service. If your child is using the Service and is under 18, please contact us immediately so that we can disable his or her access. If you have questions about the Service, please contact us at firstname.lastname@example.org.
USE AT YOUR OWN RISK
You acknowledge your use of the Phyzseek Service is at your own risk, including any and all risks associated with your use of any workouts or dietary recipes on the Service. You acknowledge that there are inherent risks of injury with any physical activity and you hereby release WFH and all of its employees, directors, officers and representatives and other parties involved in the creation, maintenance and distribution of the content on the Phyzseek Services from any and all liability arising as a result of your use of the Services or the content thereon, including, without limitations, any direct, special, incidental, indirect or consequential damages or other damages of any kind, including, but not limited to physical injury, illness, death, loss of profits, loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise.
Your Representations and Warranties as a Subscriber
In becoming a Subscriber of Phyzseek with the intent of using the Phyzseek Service, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past several months; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of your use of Phyzseek Services.
If applicable, you further affirm that (A) you are not pregnant or (B) your physician has specifically approved your use of Phyzseek Services.
You agree to abide by all applicable local, state, national, and international laws and regulations, including U.S. export and re-export control and economic sanction laws and regulations, with respect to your use of the Services. You also acknowledge and agree that your use of the Services is solely at your own risk. You should also understand that the confidentiality of any communication or material transmitted to/from a Phyzseek over the Internet or other form of global communication network cannot be guaranteed. Accordingly, WFH is not responsible for the security of any information transmitted to or from Phyzseek. Phyzseek reserves the right to prohibit or terminate use of or access to the Services at any time, without notice, for any reason whatsoever.
Phyzseek provides the Service on an "as is" and "as available" basis. You therefore use Phyzseek Service at your own risk.
Phyzseek expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Phyzseek makes no representations or warranties:
o That the Phyzseek Service, or any particular fitness program is suitable for you;
o Regarding the adequacy or safety of the Phyzseek Service for any particular user;
o That the Phyzseek Service will meet your personal needs;
o That the Phyzseek Service will be permitted in your jurisdiction;
o That the Phyzseek Service will be uninterrupted or error-free;
o Concerning any content submitted by any member;
o Concerning any third party's use of content that you submit;
o That Phyzseek will continue to support any particular feature of the Phyzseek Service; or
o Concerning sites and resources outside of the Phyzseek Service, even if linked to from the Phyzseek Service.
Phyzseek reserves the right to modify the Phyzseek Service. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Phyzseek Service. Phyzseek has no obligation to screen or monitor any content and does not guarantee that any content made available on the Phyzseek Service complies with this Agreement or is suitable for all users. Phyzseek shall not be responsible for loss or corruption of data, and hereby waives all claims with respect to damage to your computer system, internet access, download or display device.
To the extent that a secondary party may have access to or view Phyzseek content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in this Agreement.
To the extent any disclaimer or limitation of liability in this Agreement does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the Phyzseek Service, and no warranties shall apply after such period.
Limitation of Liability
WFH disclaims all warranties to the fullest extent permitted by law, whether express or implied, including, but not limited to, warranties of title, merchantability, fitness for a particular purpose and non-infringement. To the fullest extent permitted by law, WFH undertakes no warranties or representations as to the use of the Phyzseek Services in terms of correctness, accuracy, adequacy, usefulness, reliability, availability or otherwise. WFH is not liable for any communications between WFH and you. You bear the responsibility and cost of your choice of data transmission facilities. However, your carrier's normal rates and fees apply.
To the fullest extent permitted by law: (i) in no event shall WFH, nor its affiliates, be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for personal injury, death, loss of livelihood, loss of enjoyment, pain and suffering, emotional distress, loss of profits, loss of future earnings, goodwill, use, and/or any other damages or other intangible losses; and (ii) WFH's, and its affiliates' total liability to you shall not exceed the amounts paid by you to WFH over the twelve (12) months preceding your claim(s).
IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO OBTAIN OR ACCESS ANY MATERIAL THROUGH THE SERVICE OR SITE.
Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you in its entirety. However, you agree the provisions of liability will be limited to the extent permitted by law.
If links are established to a third-party website, WFH is not liable for the contents of such third-party websites. This includes links to partner's website that may use WFH's logos as part of a co-branding agreement.
You agree to indemnify, defend, and hold harmless WFH and its affiliates, directors, officers, employees, and agents, from and against all claims, losses, liabilities, expenses, damages and costs, including, without limitation, attorneys' fees, arising from or relating in any way that (i) arise from your activities on the Phyzseek Service; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to Phyzseek violates any law or infringes any personal right or third party right, including any intellectual property or privacy right. WFH reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with WFH in connection therewith.
Intellectual Property Rights – Use Restrictions
You acknowledge that the Phyzseek Services contain software, graphics, photos, videos, know-how, product ideas, comments and other material (collectively, "Content") that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Phyzseek -generated Content and Content developed for WFH/Phyzseek Services by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, WFH owns a copyright in the selection, coordination, arrangement and enhancement of all Content. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Services, you may download one copy of the application (but never the Content) to any single computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these Terms. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.
The Phyzseek name, logos and affiliated applications and technologies are the exclusive property of WFH. All other trademarks appearing on the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
WFH owns and retains all proprietary rights in the Site and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site or through the Service, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices. WFH, its subsidiaries and its respective partners reserve all rights to Content not expressly granted under these Terms. The WFH name, the WFH logo and avatar and other WFH logos and product and names related to the Services are the exclusive trademarks of, and are owned by, WFH and may not be used or displayed in any manner without the prior written permission from WFH.
If you download Software, including any other Content, from the Site, associated sites and/or distribution channels, the Software is licensed to you by WFH. WFH does not transfer title to the Software to you. THE LICENSE TO USE THE SOFTWARE AND SERVICES IS LIMITED, PERSONALLY, NON-EXCLUSIVE, NON-TRANSFERABLE AND FOR NON-COMMERCIAL USE ONLY.
You may not decompile, reverse engineer, disassemble or otherwise attempt to discover any source code, remove, redistribute, sell, assign, transfer any right in, loan, lease, grant any security interest in or any right to the Site, Services, Software, Content, User Generated Content of other Users or any parts thereof. You agree not to use any data mining, robots, scraping or similar data gathering methods. A breach hereof may result in civil and criminal sanctions.
User Conduct and User Generated Content
To use all the Services available, you must create a WFH account either by direct sign up via the Application, Website or by usage of another sign up feature made available by WFH via the Services. Any signup is subject to you providing the true, accurate and complete personal information ("User Data") as prompted by the relevant sign up feature. You undertake to keep your User Data accurate and current and thus without undue delay update your User Data when relevant.
You are responsible for any actions that take place while using your WFH account. Keep your username and password secure and do not allow anyone else to use them to access the Services. WFH is not responsible for any loss that results from unauthorized use of your username and password, with or without your knowledge.
Any content that you and other Users post or otherwise make available on or through the Services, except such Content owned by WFH, its subsidiaries business partners, shall be deemed "User Generated Content", including communications, materials, information, data, profiles, messages, notes, links to websites, text information, photos, music, videos, designs, graphics, sounds, and any other content.
You agree not to use the Services to post or transmit any material which is or may be infringing on intellectual property rights of others, harassing, threatening, false, misleading, inflammatory, libelous, an invasion of privacy or disclosure of private information, obscene, pornographic, abusive, discriminating, illegal or any material that could constitute or encourage conduct that would be considered a criminal offence, violate the rights of any party or in other ways may give rise to civil liability or non-compliance with any relevant laws of your local jurisdiction.
User Interaction Disclaimer
You are solely responsible for your interactions with other Users, whether online or in person, including but not limited to comments, challenges, contests, friendly competition, etc. WFH assumes no responsibility or liability for any loss or damage resulting from any interaction with other Users of the Services, persons you meet through the Services, or persons who find you because of User Generated Content posted on, by or through the Services. You agree to take reasonable precautions in all interactions with other Users on the Platform, and conduct any necessary investigation before meeting another person. WFH is under no obligation to become involved in any disputes between Users, but may do so at its own discretion. If WFH chooses to monitor any User Generated Content, it assumes no responsibility for, or any obligation to monitor or remove, such User Generated Content.
WFH does not monitor or prescreen User Generated Content prior to posting. WFH does not undertake any obligation or liability relating to any User Generated Content or activities of Users on the Services.
WFH reserves all rights to edit, remove, or refuse to post any User Data, User Generated Content or terminate your account for any reason.
You acknowledge, consent and agree that WFH may access, preserve and disclose your User Data, and other of your User Generated Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with a legal process, enforce the Terms, respond to claims that any Content or User Generated Content violates the rights of third parties or protect the rights, property or personal safety of WFH, its Users and the public.
Third Party Service Providers and Advertisers
WFH may choose at any time to have its business partners' and other third parties' products, services, advertisements, and other offers made available via the Services. Any such offerings made available to you, even if co-branded with WFH, are made and offered directly by the applicable third party service provider or advertiser, unless otherwise expressly noted. You acknowledge and accept that if you buy any such products or services offered you are contracting directly with the applicable business partner or third party service provider or advertiser. Your correspondence or business dealings with, or participation in promotions of, third party service providers or advertisers found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party service provider or advertiser. WFH shall not be responsible or liable for the performance or nonperformance of any third party service provider or advertiser and any loss or damages of any kind resulting thereof.
WFH reserves the right to change, discontinue and/or terminate any and all Services at any time without notice.
WFH may at any time, at its own discretion for any or no reason, and without any warning or notice, edit or remove in whole or in part any Users account and User Generated Content and further to restrict Users use of all or any part of the Services. WFH also reserves the right to block Users from certain IP addresses or Device numbers and prevent access to the Services. You understand and agree that some of your User Generated Content, which is displayed outside your profile, in activity feeds, in other parts of the Services, or on other platforms (e.g., Facebook, Twitter etc.), may continue to appear on the Services or on other platforms even after your User Generated Content is removed or your account is terminated.
WFH Premium Subscription
Your Phyzseek subscription will continue in effect unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews each month in order to avoid billing of the next month's membership fees to your Payment Method. We will bill the monthly membership fee at the then current rate plus any applicable tax to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). Subscription fees are fully earned upon payment.
Payment will be made by a valid credit card accepted by WFH via PayPal or via the Apple App Store or Google Play. Hence, you authorize us to charge your chosen payment option for your subscription fee until your terminate your subscription. Should your payment option fail, we will make reasonable efforts to resolve the issue, and notify you of the failure. However, if the issue is not resolved, we will disable your Premium subscription until payment is received. All amounts paid for the WFH Premium service, including prepayments, are non-refundable.
You may cancel your Phyzseek subscription at anytime, and cancellation will be effective immediately. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS. To cancel your subscription please follow the instructions below:
If you signed up to WFH Premium from the WFH website or directly from the Mobile App, termination is done via your personal 'Settings' page on the Site by choosing 'Cancel subscription' under the 'Subscription' menu. WFH Premium subscriptions made at the WFH website are registered and processed in Coordinated Universal Time (UTC).
If you signed up to WFH Premium from the Apple App Store, termination is done from App Store by following the instructions here.
If you signed up to WFH Premium from Google Play, termination is done from Google Play by following the instructions here.
You may terminate your subscription to WFH Premium at any time and your access to Premium features will then continue until the end of your billing cycle. Once you have made your cancellation, and received a confirmation, no further charges will be made.
Severability and Perseverance
Should any provision of the Terms be held invalid, unlawful, void or unenforceable, the remainder of the Terms shall continue to be valid and enforceable. Some jurisdictions do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.
DISPUTE RESOLUTION AGREEMENT
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) arising from or relating to this Agreement, its interpretation, or the breach, termination or validity, enforceabilty thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), SHALL BE RESOLVED EITHER BY (1) ANY COURT OF COMPETANT JURISDICTION IN THE STATE OF FLORIDA OR (2) BY BINDING ARBITRATION ADMINISTERED BY EITHER THE AAA OR THE NATIONAL ARBITRATION AND MEDIATION, INC. under the Code of Procedure of ARBITRATION-FORUM.COM (the "Code") in effect at the time the claim is filed. The Code is available at http://www.arbitration-forum.com or can be obtained by calling 1-800-753-9448. Consumer shall have the ability to choose between litigation or arbitration. In the event Consumer elects Arbitration Consumer shall have the choice of these two forums as well as choose a venue that is convenient for Consumer. Additionally, WFH shall bear the cost of the administrative and arbitrator fees. Notwithstanding any choice of law provision included in this Sale Agreement, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16) and the New York Convention on the Enforcement of Arbitration Awards (9 U.S.C. §§ 201-208 or as codified in the jurisdiction where enforcement of the award is sought). The arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute or controversy between Customer and WFH. Hearings shall be held as provided by the Code and if any In-person Hearing is required, it shall be held in a venue chosen by Consumer. Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction. Each party shall bear its own cost of any legal representation, discovery, or research required to complete arbitration; provided however, in the event that Customer should prevail on its claim against WFH then Customer shall be entitled to recover attorneys' fees from WFH to at least the same extent as Customer would recover in court.
In the event that the Customer should choose to litigate the dispute instead of arbitration, the Customer agrees to litigate the matter in a court of competent jurisdiction that is located within Palm Beach County, in the State of Florida. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of laws.
Services are rendered to you under and in accordance with Florida law. Any dispute between you and WFH is governed in all respects by Florida law, without regard to its choice of law provisions.
You agree that any notice, agreement or other disclosed communication that WFH sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Contact and Notices
All notifications, questions and comments to WFH relating to these Terms can be submitted via e-mail to email@example.com.