Fitness Select Terms of Use Agreement

The fitnessselect.com.au web site (the "Site") is open to both the general public and fitness professionals. For the purpose of this Terms of Use Agreement, the general public shall be referred to as "clients". The main purpose of the Site is to provide a medium for trainers and fitness professionals to advertise their services. Fitness Select has no affiliation with any trainer on the site, and all clients are to use the site at their own risk. We hold no responsibility for any injuries or death that may occur, when using any trainers advertised on the site. It is the responsibility of the clients, and not Fitness Select, to ask/ research the qualifications of any/all fitness professionals on the site that they may use. Clients must always ask fitness professionals for their qualifications, and insurance documents, before using their services. By joining our community, clients will be able to contact trainers in their area, and gain insight on trainers promotions and offerings. Trainers will be able to advertise their services, acquire client bookings, as well as promote their own expertise in the industry. For the purpose of this Terms of Use Agreement, both clients and trainers shall be referred to as "you" or "your."

Please understand that, by joining our community and accessing information on the Site, you are acknowledging that you have read, understood, and agree to comply with the terms and conditions stated within this Terms of Use Agreement (this "Agreement"), which shall constitute a binding agreement between you, as a user of the Site, and Fitness Select Corporation ("Fitness Select"). For the purpose of this Agreement, the term “Site” shall also include any mobile application offered by eWAY. This Agreement is an electronic contract that sets out the legally binding terms of your use and membership of the Site. If there is any conflict between this Agreement and the terms of any other agreement that you have entered with eWAY, those terms will supercede the terms of this Agreement.

1. How to Use our Service
The service is available to both trainers and clients, so that they may advertise and schedule sessions. To enjoy the service, trainers must develop a profile and input their locations and specialty services. This will allow clients to send online inquiries directly to trainers. The clients will not need to register on the Site to begin searching for trainers on the site. The clients can register on the site to access other services, such as the community forum, and free E-Books.

2. Registering on the Site
Only trainers must register with the Site. To register, trainers must provide their full name, state of residence, zip code, phone number, email address, and create a password. Trainers may also provide information about their experience and location.

You agree that any information that you supply during the registration process will be accurate, truthful, and complete. You also agree not to (i) select, register, or attempt to register, or use a name of another person with the intention of impersonating that person; (ii) use a name of anyone else without authorization; (iii) register as a fitness professional claiming false qualifications (iiii) use any content, names, data, or other information that is in violation of the intellectual property rights of any person or that Fitness Select considers to be offensive or adverse to the spirit and purpose of the Site. Fitness Select reserves the right to reject or terminate any registration that, in its judgement, it deems offensive or otherwise in violation of this Agreement.

You will be responsible for preserving the confidentiality of your password and will notify Fitness Select of any known or suspected unauthorized use of your account. Further, you agree that you are responsible for all statements made and acts or omissions that occur on your account while your password is being used. If you believe someone has used your password or account without your authorization, you must notify Fitness Select immediately. Fitness Select reserves the right to access and disclose any information including, without limitation, user names of accounts and other information to comply with applicable laws and lawful government requests. You must be at least 16 years old to register on the Site.

Fitness Select offers a members portal so registered trainers can change the information provided at the time of your initial registration, including any change of address or name. If further information needs to be changed, such as email, contact our representatives at admin@fitnessselect.com

3. Proprietary Rights to Content
All materials contained on the Site are protected by copyright law except where explicitly noted otherwise. Fitness Select reserves all rights in this content.

All materials contained on the Site are protected by copyright law except where explicitly noted otherwise. Fitness Select reserves all rights in this content.

You acknowledge and agree that content, including but not limited to text, software, photographs, video, design, recordings, music, graphics, or other material contained on the Site (the “Content”) is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and applicable law. You agree not to copy, reproduce, distribute, or create derivative works from the Content or otherwise use, transmit, rebroadcast, publish, or distribute the Content in any form other than as expressly authorized by this Agreement without Fitness Selects’ prior written consent. You understand and agree that you are permitted to make one copy of the Content for personal use only, provided you:

  • Keep all copyright and other proprietary notices on each copy you make
  • Use the material in a manner consistent with this Agreement
  • Understand that we are neither transferring ownership of the materials directly or by implication, nor granting any license or right to the trademarks, tradenames, or copyrights of any party

Using any of our materials for a commercial purpose without our express written consent-violates our copyrights and other proprietary rights.

You may not use any data mining, robots, scraping, or similar data gathering and extraction tools on the Content, frame or scrape data from any portion of the Site or Content, or reproduce, reprint, copy, store, publicly display, broadcast, transmit, modify, translate, publish, sublicense, assign, transfer, sell, loan, or otherwise distribute the Content without our prior written consent. You may not circumvent any mechanisms included in the Content for preventing the unauthorized reproduction or distribution of the Content. You also are prohibited from taking any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure. Finally, you may not utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Site.

4. User Conduct
You agree that all the information that you access on the Site will be used only for your own personal purposes. You will not make any other unauthorized use of the Site or any interactive features available on the Site or otherwise act in a manner that is disruptive to the purpose and intent of the Site. You may not engage in any conduct or action that is prohibited by any applicable law.

5. Privacy
Fitness Select collects information about the users of the Site. Collection of this information is governed by our Privacy Policy, which may be accessed at Privacy Policy.

6. Waiver
You acknowledge that training can be dangerous. The facilities at which a sessions takes place may contain hazards that could result in your injury or death or damage to your property. The equipment used at a session could cause your injury or death or damage to your property. Your client or trainer could cause your injury or death or damage to your property. You assume all risk of injury, death, and property damage related to all sessions scheduled through the Site. Fitness Select does not inspect or maintain any facilities at which any lesson takes place, does not provide any equipment used at any session, and is not responsible for the behaviour of any client or trainer. By scheduling a session with a trainer, you are agreeing that Fitness Select has no liability whatsoever for any injury, death, or property damage suffered by you in connection with such session.

7. Corporate Identification and Trademarks
You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or all registered and unregistered information on the Site, in any way without Fitness Selects' prior written permission. The use of Fitness Selects' information on any other web site, without authorization, is prohibited.

8. Public Areas of the Site; IP Warranty and Grant
Certain areas of the Site may allow both trainers and clients to post their own Content (as defined in Paragraph 3), which can be accessed and viewed by others, including the public in general. For example, the trainers may upload photos and biographical information that is created by the trainer for the purpose of publication on the Site. Please know that you may only post such Content to public areas on the Site that you created or that you have permission to post. You may not post any Content that violates these Terms of Use.

We do not claim ownership of any Content (as defined above) that you may post. However, by submitting such Content to public areas of the Site, you hereby warrant that you own the appropriate rights in the Content, so as not to violate any third party’s intellectual property or proprietary rights. Further, you grant to Fitness Select a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content, including any message or any e-mail sent by you to us or posted on the Site (in whole or in part), and/or to incorporate it in other works in any form, media, or technology now known or later developed without the need to attributed authorship.

To be clear, you understand and agree that you may not upload, post, or otherwise make available on the Site any Content protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right. You are responsible for determining that such material is not protected by copyright, trademark, or other proprietary right. You shall be solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right, or any other harm resulting from any uploading, posting or submission.

9. Prohibited Conduct
By using the Site you agree not to submit, post, or transmit any content or otherwise to engage in any conduct, that violates any of the following rules:

  • You may not attempt to harm, disrupt, or otherwise engage in activity that impairs, the Site.
  • You may not post any content on the Site that (a) violates or encourages others to violate any applicable law or regulation, or which would give rise to civil liability; (b) is fraudulent, false, misleading, or deceptive; (c) is defamatory, pornographic, obscene, vulgar, or offensive; (d) promotes bigotry, racism, hatred, harassment, or harm against any individual or group; or (e) is abusive or threatening.
  • You may not attempt to interfere with any other person’s use of the Site or the services offered on the Site.
  • You may not misrepresent your identity or impersonate any person.
  • You may not access, descramble, deactivate, remove, impair bypass, or circumvent any technological measure that we, our partners, or a third party have implemented to protect the Site.
  • You may not attempt to gain access to any account, computers or networks related to or used in connection with the Site, without authorization, or otherwise tamper with any aspect of the Site, or use any robot, spider, data mining tool, web tool, engine, software, device, or mechanism to access data on the Site, unless we provided you with such tool and authorized you to use it for the specific purpose(s) in which you have used it.
  • You may not attempt to obtain any data through any means from the Site, except if we intend to provide or make it available to you.
  • You may not use the Site to participate in pyramid schemes or chain letters.
  • You may not use the Site to send, either directly or indirectly, any unsolicited bulk email or communications or unsolicited commercial email or communications.
  • You may not use the Site to post, display, send or otherwise make available or use, any material protected by intellectual property laws unless you own or control all necessary rights to such material or have received all necessary authorization.
  • You may not use the Site to send or otherwise make available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of any computer or property.
  • You may not use the Site to download any material sent by another user of the Site that you know, or reasonably should know, cannot be legally distributed in such manner.
  • You may not use the Site in a manner that violates this Agreement, or any code of conduct or other guidelines which may be applicable to the Site.
  • You may not use the Site to harvest or otherwise collect information about others, including without limitation email addresses.
  • You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by us in connection with the Site.
  • You may not use the Site in a manner that results in excessive bandwidth usage, as determined solely by us.

We have the right to make all judgments concerning any of the above prohibitions in our sole, exclusive, and complete discretion. We reserve the right, also in our sole discretion, to determine whether and what action to take in response to any violation or potential violation of this Agreement, and any action or inaction in a particular instance shall not dictate or limit our response to a future complaint or situation.

10. Right to Terminate
We may, in our sole discretion, terminate the registration of any user or trainer who violates the terms of this Agreement.

11. Breach
In the event of a breach of this Agreement, Fitness Select may terminate your ability to use the Site and prohibit you from any future access of the Site. Fitness Select reserves the right to take any further action, as allowed by applicable law.

12. Auto-Renewal

  • By joining our service, and providing your credit card billing information, you agree that your service subscription will automatically renew for successive renewal terms, and you expressly authorise and permit eWAY to bill each service renewal fee to the credit card you have provided, until you cancel the automatic renewal of your services.
  • Automatic renewal transactions will usually be processed on the day before your existing service expires, so if you want to cancel your automatic renewal, you should do so at least 48 hours prior to your service expiry date to ensure that the cancellation is possible. You will not be able to cancel an auto-renewal on the day it is due to be processed.
  • You agree that you are responsible for payment of all fees related to any service that you have set to auto-renew. Once the service renewal has been processed it cannot be reversed nor any fees refunded.

13. Links to Third Party Sites
At times, the Site may contain links to third-party web sites, which are not under the control of Fitness Select. Fitness Select makes no representations whatsoever about any other web site to which you may have access through the Site. When you access another web site, you do so at your own risk and acknowledge that Fitness Select is not responsible or liable for any content, advertising, services, products, or other materials available from such third party web sites. You also agree that Fitness Select shall not be liable for any loss or damage of any sort incurred as the result of using any third party’s web site. Mention of third-party companies and web sites on the Site is for informational purposes only and does not constitute an endorsement or recommendation.

14. Email Policy
You may receive periodic emails from Fitness Select. If you would rather not receive email from Fitness Select, please send an email to admin@Fitnessselect.com and you will be unsubscribed from receiving further mailings. You acknowledge and agree, however, that you will still receive session confirmation emails, no-show confirmation emails, session change confirmation emails, session cancellation confirmation emails, and other emails relating to any sessions that are booked through the Site, even if you have opted not to receive periodic email from Fitness Select.

15. Limitation of Liability
IN NO EVENT SHALL FITNESS SELECT BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR DAMAGES (INCLUDING INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (I) ANY USE OF THE SERVICES, THE SITE, OR ITS CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES OR THE SITE FOR SCHEDULING PURPOSES), OR (III) THE PERFORMANCE OR NON-PERFORMANCE OF ANY TRAINER OR CLIENT IN CONNECTION WITH THE SERVICES, EVEN IF FITNESS SELECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16. Disclaimer of Warranties
Fitness Select makes no warranty that the Site will be uninterrupted, timely, secure, or error free. Fitness Select makes no warranty as to the accuracy of the information on the Site.

UNLESS EXPRESSLY STATED OTHERWISE, FITNESS SELECT PROVIDES THE CONTENT ON THE SITE "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, AND FITNESS FOR A PARTICULAR PURPOSE.

17. Indemnification
You agree to indemnify, defend, and hold harmless Fitness Select, its officers, directors, employees, agents, affiliates, distributors, and licensees from and against any judgment, losses, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with or arising from any claim, demand, suit, action, or proceeding arising out of any breach of this Agreement by you or in connection with your use of the Site or any service (or product) related thereto.

18. Right to Modify or Change
Fitness Select reserves the right to modify this Agreement periodically at its sole discretion. When it makes any modification to this Agreement, it will update the date referenced at the end of this page. Your continued use of the Site constitutes acceptance of the terms and conditions stated at the time of use.

19. Governing Law
This Agreement and the relationship between Fitness Select and you shall be governed by and construed in accordance with the laws of the State of Delaware. Any controversy or claim arising out of or relating to this Agreement or relating to use of this web site and the material contained in this web site shall be resolved in a court in the State of Texas.

20. Electronic Signature
The Terms of Use Agreement is an electronic contract that governs your use of and access to the Site and Services. Upon agreeing to the Terms of Use when enrolling for the Instructor Application and Customer Checkout, you acknowledge that you understand and agree to be legally bound by the Terms of Use Agreement and the terms, conditions and notices contained or referenced herein. Checking the box creates an electronic signature that has the same legal force and effect as a handwritten signature.

21. Waiver/Severability
The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.