Terms of Service

Last Modified: October 3, 2013

1. Acceptance of the Terms of Service

By accessing or using the Foov website, the Foov service, or any applications (including mobile applications) made available by Foov (together, the “Service“), however accessed, you agree to be bound by these terms of use (“Terms“). The Service is owned or controlled by Foov Fitness LLC (“Foov“). These Terms affect your legal rights and obligations. If you do not agree to be bound by all of these Terms and our Privacy Policy, do not access or use the Service.You may only use our Service if are able to form a binding contract with Foov.  By using the Service, you represent and warrant that you are of legal age to form a binding contract and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Service.

2. Changes to the Terms. We may revise these Terms from time-to-time in our sole discretion, and the most current version will always be posted on our website at www.foovfitness.com/terms. If, in our sole discretion, we deem a revision to be material, we will notify you. By continuing to access or use the Service after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, you must stop using the Service.

3. Final Sales. All sales of the Services are final and non-refundable.

4. Service Cancellation. Without limiting our other remedies, Foov may, at any time in its sole discretion, temporarily suspend, indefinitely suspend or refuse to provide any or all of the Service. Upon termination, you continue to be bound by Sections 4 – 6, and 9 – 17 of these Terms.

5. Trademarks. Foov’s name, the company logo and all related names, logos, product and service names, designs and slogans are trademarks of Foov or its affiliates or licensors. You must not use such marks without the prior written permission of Foov. All other names, logos, product and service names, designs and slogans on the Service are the trademarks of their respective owners.Major League Baseball trademarks and copyrights are used with permission of MLB Advanced Media, L.P. All rights reserved.   Photos courtesy of the Chicago Cubs (Steve Green, photographer). Used with permission.

6. Intellectual Property Rights / Our License to You
The Service and all related contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof in), are owned by Foov, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.  Subject to these Terms and our policies, including the Acceptable Use Policy, we grant you a limited, non-exclusive, non-transferable, and revocable license to use our Service for non-commercial purposes.

7. Updates.   Foov may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Foov has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device settings, when your mobile device is connected to the internet either the Service will automatically download and install all available Updates; or you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Service or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of this Agreement.

8. Acceptable Use Policy

You agree not to engage in any of the following prohibited activities:

  • Use, display, mirror or frame the Service, any individual element within the Service, the Foov name, trademark, logo or other proprietary information, or the layout and design of any page, without our express written consent;
  • Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;
  • Attempt to probe, scan, or test the vulnerability of any Foov system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Foov or any of our providers or any other third party (including another user) to protect the Service or any related content;
  • Attempt to access or search the Service and any content or scrape or download Foov content from the Service, or otherwise use, upload content to, or create new links, reposts, or referrals in the Service through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Foov or other generally available third party web browsers;
  • Send any unsolicited or unauthorized spam and spam comments on posts, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a Foov trademark, logo, URL, or product name without our express written consent;
  • Use the Service for any commercial purpose or the benefit of any third party, except as otherwise explicitly permitted for you by Foov and in any manner not permitted by the Terms;
  • Use our user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
  • Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation;
  • Request, collect or store username, password, token or any other account authentication information from other users; or
  • Encourage or enable any other individual to do any of the activities prohibited in this Acceptable Use Policy.
  • Take any action that may cause us to lose any of our services from our internet service providers, payment processors, or other suppliers;

9. Third-Party Links, Sites, and Service.

Our Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Foov. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third party website, service, or content from Foov, you do so at your own risk and you agree that Foov will have no liability arising from your use of or access to any third-party website, service, or content.

10. Health & Safety.  Content found on Foov or through the Service is for informational purposes only and is not intended to replace the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You should always consult a physician before starting a fitness program (including Foov’s Service) or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the Service. Not all exercises or activities described on the Service are suitable for everyone. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. People who have adverse medical or nutritional conditions should not use the Service unless such use is directed and closely monitored by a physician.

We are not responsible for any health problems that may result from training programs or products related to the Service. If you engage in the exercise program you receive through the Services you agree that you do so at your own risk and are voluntarily participating in these activities.

11. Disclaimer of Warranties.

YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER FOOV NOR ANY PERSON ASSOCIATED WITH FOOV MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE OR THE INFORMATION PROVIDED ON THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER FOOV NOR ANYONE ASSOCIATED WITH FOOV REPRESENTS OR WARRANTS THAT THE SERVICE OR ANY INFORMATION PROVIDED ON THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. FOOV HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12. Limitation on Liability.

IN NO EVENT WILL FOOV, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY WEBSITES LINKED TO IT, OR ANY CONTENT ON THE SERVICE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.  IN NO EVENT SHALL FOOV’S AGGREGATE LIABILITY EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

13. Indemnification. 

You agree to defend, hold harmless and indemnify Foov from and against any and all losses, costs, expenses, damages or other liabilities incurred by Foov from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against Foov in connection with your use of the Service.  Any such indemnification shall be conditioned on our: (i) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (ii) cooperating with you in the defense or settlement thereof; and (iii) allowing you to control such defense or settlement. We shall be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.

14. Governing Law and Jurisdiction.

All matters relating to the Service and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction).  Any legal suit, action or proceeding arising out of, or related to, these Terms or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in the City of Chicago and Cook County.  You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Our Service is controlled and operated from the United States, and we make no representations that it is appropriate or available for use in other locations.

15. Agreement to Arbitrate.

If any controversy, allegation, or claim arises out of or relates to the Service, the Website, or these Terms, including, but not limited to, claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a “Dispute“), then either you or Foov may elect to submit the Dispute to be finally and exclusively resolved by binding arbitration before a sole arbitrator in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in Chicago, Illinois; but if the applicable arbitration rules or laws require the arbitration to be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, Foov shall have the right to elect to proceed to arbitration in such location.  If the value of the relief sought is $10,000 or less, you or Foov may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Foov subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Foov, unless the arbitrator requires otherwise.

All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. You and Foov will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Foov to pay a greater portion or all of such fees and costs in order for this Section 15 to be enforceable, then Foov will have the right to elect to pay the fees and costs and proceed to arbitration.

In arbitration, as with a court, the arbitrator must honor the terms of these Terms and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED.

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A REPRESENTATIVE OR CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.

16. Waiver and Severability. No waiver by Foov of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Foov to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

17. Entire Agreement.  The Terms and our Privacy Policy constitute the sole and entire agreement between you and Foov with respect to the Service and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Service.

18. Your Comments and Concerns.  All other feedback, comments, requests for technical support and other communications relating to the Service should be directed to info@foovfitness.com.

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