a) Acceptance of Terms.By accessing and/or using the Site, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. You accept these Terms each time you access the Site. If you do not agree to these Terms, you must not use the Site.
b) Amendment of Terms.HealthKick may amend these Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms on the Site; provided, however, that we will endeavor to provide you with prior notice of any material changes to these Terms. Your continued access to or use of the Site after such posting constitutes your consent to be bound by the Terms, as amended.
2. HEALTHKICK PLATFORM
a) HealthKick Platform.HealthKick operates a platform that enables employees of HealthKick members to purchase a wide range of products and services, and schedule fitness and wellness services offered and operated by, wellness companies and venues such as fitness studios, gyms, trainers or of other third parties that partner with HealthKick (Vendors). Through the HealthKick platform you can access these third party products and services. HealthKick itself is not a product manufacturer, seller, or distributor or gym, fitness studio or service provider and does not own, operate or control any of the products or services, or facilities accessible through, the Site.
b) Use of HealthKick.Your HealthKick membership is personal to you and you cannot share discount codes with, or transfer or gift classes to third parties, including other HealthKick participants. HealthKick is only available to you through your employer during your term of employment. Should your employment be discontinued, you will no longer be eligible for HealthKick access and your account will be closed immediately. Also, HealthKick may not be used for commercial purposes. To use the Site you must have access to the Internet. You must also use the email address provided to you by your employer when you use the Site, and not your personal one.
3. TERMINATION OR MODIFICATION BY HEALTHKICK.
a) Termination or Modification.You understand and agree that, at any time and without prior notice HealthKick may (1) terminate, cancel, deactivate and/or suspend your your account, any orders placed, or your access to or use of the Site (or any portion thereof) or (2) discontinue, modify or alter any aspect, feature or policy of the Site or any Vendors on out Site you have access to. Upon any termination, we may immediately deactivate your account and all related information and/or bar any further access to your account information and the Site. You agree that HealthKick will not be liable to you or any third party for any termination or modification to the service regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us is to terminate your use of the Site.
b) Fraudulent Activity. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies HealthKick may have at law or in equity.
4. COPYRIGHT POLICY.
a) Company respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask you to do the same. Infringing activity will not be tolerated on or through the service. Healthkicks intellectual property policy is to (i) remove or disable access to material that Healthkick believes in good faith, upon notice from an intellectual property owner or its agent, is infringing the intellectual property of a third party by being made available through the service, and (ii) remove any user content uploaded to the service by repeat infringers. We consider a repeat infringer to be any user that has uploaded user content or creative ideas (as defined below) to or through the service and for whom Healthkick has received more than two takedown notices compliant with the provisions of 17 U.S.C. 512 with respect to such user content or creative ideas. We have discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon our own determination.
b) Procedure for reporting claimed infringement. If you believe that any content made available on or through the service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a notification of claimed infringement containing the following information to the designated agent identified below. We may share your notification of claimed infringement with the user alleged to have infringed a right you own or control, and you consent to us making such disclosure. Your communication must include substantially the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit company to locate the material;
Information reasonably sufficient to permit company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. 512 to confirm your obligations to provide a valid notice of claimed infringement.
c) Designated agent contact information. Our designated agent for receipt of notifications of claimed infringement (the Designated Agent) can be contacted at:
Via e-mail: email@example.com
Via u.s. mail: 175 Varick St. New York, NY 10014
d) False notifications of claimed infringement or counter notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [section 512 of the copyright act (17 u.s.c. 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys fees, incurred by the alleged infringer, by any copyright owner or copyright owners authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. 512(f).
Healthkick reserves the right to seek damages from any party that submits a notification under this section in violation of the law.
5. ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD; SITE ACCESS.
a) Eligibility Criteria.We may limit the availability of all or part of our Site based on demographic, geographic or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to HealthKick or may terminate your subscription at any time based on these criteria. For example, you must be 18 years of age or older to use this Site. No part of the Site is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The SERVICE AT ANY TIME OR IN ANY MANNER.
b) Account Information.You agree that the information you provide to HealthKick at registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account.
7. PROHIBITED CONDUCT.
You promise not to:
Harass, threaten, or defraud users, members or staff of HealthKick or any Vendor or make unsolicited offers, advertisements, proposals, or send junk mail or spam to users;
Share HealthKick-issued passwords or discount or promo codes with any third party or encourage any other user to do so;
Use any email account to access the Site other than the email address given to you by your employer;
Permit third parties to purchase any products or use any classes or other services booked under your own name, including other members;
Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the copyright or other proprietary rights; and
Upload material (e.g. virus) that is damaging to computer systems or data of HealthKick or users of the Site;
8. PROHIBITED USES.
As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner that, in our sole discretion, could damage, disable, overburden, or impair it or interfere with any other partys use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site, or any part of the Site, other accounts, computer systems or networks connected to the Site, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site. You agree neither to modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site.
HealthKick reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
9. OWNERSHIP; PROPRIETARY RIGHTS.
The HealthKick website is owned and operated by HealthKick. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Site provided by HealthKick (Materials) are protected by the copyright, trade dress, patent, and trademark laws of the Unites States, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content uploaded by you (User Content), all Materials contained on the Site are the copyrighted property of HealthKick or third-party licensors. All trademarks, service marks, and trade names are proprietary to HealthKick or third-party licensors. Except as expressly authorized by HealthKick, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
We appreciate hearing from our users and welcome your comments regarding the Site. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (collectively, Creative Ideas), we will:
1. own, exclusively, all now known or later discovered rights to the Creative Ideas;
2. not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Creative Ideas; and
3. be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
10. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS.
The Site may include links or access to other web sites or services (Linked Sites) solely as a convenience to users. HealthKick does not endorse any such Linked Sites or the information, material, products, or services contained on other linked sites or accessible through other Linked Sites. Furthermore, HealthKick makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
By using the Site or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Site. If we learn of a security systems breach, we may attempt to notify you electronically by posting a notice on the Site or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice will be deemed given three days after the date of mailing.
12. DISCLAIMERS; NO WARRANTIES.
ALL CLASSES, ACTIVITIES, AND OTHER PRODUCTS AND SERVICES OFFERED VIA THE SITE ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT HEALTHKICK. YOUR ATTENDANCE AT AND PARTICIPATION IN THESE CLASSES, ACTIVITIES, AND YOUR USE OF THESE PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL HEALTHKICK BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USERS ATTENDANCE, USE OF OR PARTICIPATION IN A CLASS, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE SITE, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. HEALTHKICK IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.
THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, OR SERVICES, MADE AVAILABLE IN CONJUNC TION WITH OR THROUGH THE SITE ARE PROVIDED AS IS AND AS AVAILABLE WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HEALTHKICK, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WITHOUT LIMITING THE FOREGOING, HEALTHKICK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, OR SERVICES, MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SITE IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
13. WAIVER AND RELEASE.
You understand that HealthKick is not a gym or fitness studio or other service provider and the classes you take or services you use are operated and delivered by the applicable Vendor and not by HealthKick. Although HealthKick endeavors to offer partners that provide high quality products and services, HealthKick is not responsible for the quality of any product, class or service. You understand that there are certain inherent risks and dangers in exercising and that the classes you may attend offer a range of activity and intensity level. By signing up for HealthKick access, you acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or assigns that you are aware of these risks which include, but are not limited to, property damage, illness, emotional distress and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You acknowledge and agree that it is your responsibility to consult with your primary care physician prior to participating and to determine if and how participating in any class or service is appropriate for you. You also understand and agree that the Site offers health and fitness information that is designed for educational and entertainment purposes only and the use of any of the information provided on the Site is solely at your own risk.
Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless HealthKick and each of its respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses, damages and liabilities arising out of or in any way related to your participation in or use of the Site, including with respect to bodily injury, physical harm, illness, emotional distress, death or property damage.
14. INDEMNIFICATION; HOLD HARMLESS.
You agree to indemnify and hold HealthKick and its suppliers and partners harmless from any claims, losses, damages, liabilities, including attorneys fees, arising out of your misuse of the Site, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.
15. LIMITATION OF LIABILITY AND DAMAGES.
UNDER NO CIRCUMSTANCES WILL HEALTHKICK OR ITS CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS (THE RELEASED PARTIES) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF HEALTHKICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 SUCH CASES, HEALTHKICKS LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF COMPANY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
16. VENUE WAIVERS AND TERMS.
Members taking classes or attending a gym are deemed to agree to the liability waivers of individual Vendors. Your participation in any class or service may be subject to addition policies, rules or conditions of the applicable Vendor. If you have questions about a Vendors waiver or other terms, please see the applicable Vendors website or contact the Vendor directly.
PLEASE READ THE FOLLOWING CAREFULLY:
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION PROVISION.
a) Pre-Arbitration Dispute Resolution.For all disputes arising from these Terms, you must first give HealthKick an opportunity to resolve the dispute. You must commence this process by mailing written notification to HealthKick at 175 Varick St. New York, NY 10014. That written notification must include a written description of the dispute and the specific relief you seek. If HealthKick does not resolve the dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your dispute in arbitration.
b) Arbitration Procedure. You and HealthKick hereby submit to personal and exclusive arbitration of any disputes relating to these Terms and the use of the Site in accordance with the rules of the American Arbitration Association. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
c) Location of Arbitration.You may initiate arbitration in New York County, New York. In the event that HealthKick initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide when you sign up for your account. You covenant not to sue HealthKick in any other forum.
d) Waiver of Jury Trial. You also acknowledge and understand that, with respect to any dispute with the Company, its officers, directors, employees, agents, or affiliates, arising out of or relating to your use of the Site or this Agreement:
YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
e) No Class Actions. YOU AND HEALTHKICK AGREE THAT YOU AND HEALTHKICK MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSONS CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID. IN SUCH CASE, YOU AND HEALTHKICK AGREE THAT THE EXCLUSIVE JURISDICTION AND VENUE DESCRIBED IN SECTION 18 WILL GOVERN ANY ACTION ARISING OUT OF OR RELATED TO THESE TERMS.
a) Choice of Law; Forum.These Terms shall be governed in all respects by the laws of the State of New York, without regard to conflict of law provisions. You agree that any claim or dispute you may have against HealthKick must be resolved by a court located in New York County, New York, except as otherwise agreed by the parties or as described in the arbitration paragraph above. You agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes.
b) Assignment.We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
c) Severability.If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
e) Entire Agreement.These Terms, as they may be amended as set forth herein, are the entire agreement between you and HealthKick relating to the subject matter herein.
f) Disclosures.The services hereunder are offered by HealthKick LLC, located at: 175 Varick St, 4th Floor New York, NY 10014 and email:contact@HealthKick.com.
g) Waiver.No waiver of any of these Terms by HealthKick is binding unless authorized in writing by an executive officer of HealthKick. In the event that HealthKick waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of HealthKick to enforce the same at a later time.
Last updated:September 10, 2015