Membership Terms & Conditions
Effective July 1, 2021
Welcome to Active&Fit DirectTM, an exercise and healthy living program provided by American Specialty Health Fitness, Inc., a subsidiary of American Specialty Health Incorporated. American Specialty Health Incorporated, together with all its subsidiaries and affiliates, including American Specialty Health Fitness, Inc., are referred to hereinafter collectively as “ASH” or “we”.
READ CAREFULLY: The following terms and conditions (collectively, these “Terms” or “User Agreement”), together with the Active&Fit Direct Privacy Statement, constitute a legally binding agreement between you and ASH that governs your participation in the Active&Fit Direct program (the “Program”), including your use of the Program website located at www.activeandfitdirect.com, including its contents and elements (text, graphics, artworks, logos, trademarks, service marks, designs, photos, images, videos, audios, listings, directories, printable or downloadable materials, programming/HTML code, page layouts, “look and feel” and user interface designs, embedded software tools and applications, etc.), and any other websites or applications and digital features related to the Program (the “Website”). By using the Website, you accept and agree to be bound by the following Terms and the Website Privacy Statement applicable to your use of the Website. Please note, the Website may contain links to third-party websites and online services that are not owned or controlled by ASH. ASH has no control over, and assumes no responsibility for, such websites and online services, and any terms and conditions provided by or on those third-party websites or applications control any use of those websites or applications.
ABOUT THE PROGRAM: The Active&Fit Direct program is an exercise and healthy living program comprised of; 1) an online digital fitness program, 2) membership at participating fitness locations, and may include access to 3) the Active&Fit Direct Healthy Living Program with telephonic coaching. The Program is provided by American Specialty Health Fitness, Inc., who may procure services from its parent or affiliated companies or third parties related to the Program. Further details of the Program are described in Section 6 below.
The Program requires payment of an Enrollment Fee, plus certain recurring Monthly Fees, and any applicable Annual Maintenance Fees, as set forth in, and in accordance with, Section 2 below. The Enrollment Fee, Monthly Fees, and any applicable Annual Maintenance Fees, are required to cover some of the costs associated with ASH’s continuing ability to offer Program features and they are deemed earned upon payment and are not severable.
ASH Fitness reserves the right to increase, modify, or otherwise change the fees associated with the Program, including a material change to any aspect or feature of the Program, at any time and for any reason upon 30 days advance Notice (as defined in Section 12.1) of the effective date of such increase, modification, or change.
If you have questions about the Program, please contact ASH using the contact information posted at Contact Us.
Information Privacy: Your privacy is important to us. To learn more about how ASH protects your personally identifiable information collected through the Program and/or the Website, please refer to our Privacy Statement.
NOTICE TO CALIFORNIA RESIDENTS: Pursuant to Section 17538 of the California Business and Professions Code, prior to accepting payment from a buyer, also referred to as Primary Account Holder herein, located in California, we are required to disclose the following information to the buyer:
- Our Legal Name: American Specialty Health Incorporated
- Our Business Address: 10221 Wateridge Circle, San Diego, CA 92121 Our cancellation and refund policy is set forth in Section 3 (Participant Cancellation) of these Terms.
NOTE TO INTERNATIONAL USERS:
The Program and Website are intended for U.S. residents only. If you are outside of the United States and access the Website or submit your personal information to us, please be advised that U.S. law may not offer the same privacy protections as the law of your jurisdiction. By using the Website or submitting your personal information to us, you consent to the transfer to and processing of your personal information in the United States.
IMPORTANT WARNINGS AND DISCLAIMERS:
- Physical exercise may result in injury, and not all exercises are safe or suitable for everyone. PLEASE ALWAYS CONSULT YOUR DOCTOR BEFORE BEGINNING ANY EXERCISE OR FITNESS PROGRAM, especially if you have any chronic or recurring condition, and/or if you are pregnant, nursing, or elderly. ASH, its content providers and its suppliers are NOT responsible or liable for any injury or illness you suffer from physical exercise. By engaging in an exercise or fitness program, you assume all risks of injury and illness.
- ALWAYS warm up before beginning any workout.
- NEVER exercise beyond the level at which you feel comfortable.
- PLEASE STOP EXERCISING IMMEDIATELY if you experience pain, soreness, fatigue, shortness of breath, dizziness, lightheadedness, blurred vision, headache, nausea, sickness, illness, dehydration, excessive sweating, or any other discomfort. If any of these symptoms persists after you stop exercising, please seek medical help immediately.
- The Program and the Website are for general informational purposes only. ASH makes NO representation or warranty, whether express or implied, with respect to the Program or the Website. ASH does NOT endorse and is NOT responsible for any participant-posted view, opinion, advice, statement or comment on the Website. NOTHING YOU SEE OR READ OR OBTAIN FROM THE PROGRAM OR THE WEBSITE IS INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. This also applies to any interactive tools that may be made available through the Program or the Website, such as the Resource Library. Such interactive tools are in no way intended as, nor are a substitute for, qualified, expert medical diagnosis, advice, counseling, or treatment. If you have a health condition or illness, or you require a medical opinion, you should consult with a licensed health professional in your area for proper examination, diagnosis, and treatment. Information you submit to ASH when using such interactive tools is retained by ASH and will be used by ASH for operating the interactive tools including providing you with information that you have requested or that may be of interest to you, and for other purposes described in our Privacy Statement, or as otherwise authorized by you.
- ASH may continue to add, modify and delete existing features of the Program and the Website without the need to update these Terms and Conditions.
- THIS USER AGREEMENT CONTAINS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION.
- THE WEBSITE IS NOT INTENDED TO PROVIDE INSTRUCTIONS IN THE EVENT OF AN EMERGENCY. IF YOU BELIEVE YOUR SYMPTOM(S) OR SITUATION IS LIFE-THREATENING, CALL 911 OR YOUR EMERGENCY MEDICAL SYSTEM IMMEDIATELY.
- ASH IS NOT A MEDICAL PROVIDER AND NEITHER ITS STAFF, INCLUDING BUT NOT LIMITED TO COACHES, NOR THE WEBSITE AND SERVICES CAN GIVE MEDICAL ADVICE NOR CAN THEY PROVIDE ANY INFORMATION CONCERNING THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL OR HEALTH CONDITION. THE INFORMATION ON THE WEBSITE IS OF A GENERAL NATURE AND IS INTENDED ONLY FOR EDUCATIONAL PURPOSES TO HELP WITH YOUR PERSONAL HEALTHY LIVING AND FITNESS GOALS AND SHOULD NOT BE RELIED ON AS MEDICAL ADVICE. THE INFORMATION ON THE WEBSITE SHOULD NOT BE USED AS A SUBSTITUTE FOR THE DIAGNOSIS, TREATMENT, OR CONSULTATION CONCERNING ANY MEDICAL OR HEALTH CONDITION BY QUALIFIED HEALTH CARE PROFESSIONALS.
- The Website expressly prohibits you from using information and services on the Website to diagnose, treat, cure, or prevent any medical condition. Application or reliance on any of the content, techniques, ideas and suggestions accessed through the Website is at your sole discretion and risk.
- Personal Health Improvement Program Disclaimer: It is expressly noted that some personal health improvement programs are not appropriate for individuals who have certain medical or other health conditions. YOU ARE STRICTLY RESPONSIBLE FOR SEEKING MEDICAL ADVICE FROM A PHYSICIAN PRIOR TO PARTICIPATING IN ANY PERSONAL HEALTH IMPROVEMENT PROGRAM DISCUSSED, MENTIONED OR PROVIDED ON WEBSITE. You hereby agree and understand that you may not be aware of a medical condition from which you suffer, and therefore you should not participate in the personal health improvement programs presented on the Website prior to seeking the advice of a physician.
The Program is available to eligible member(s), as further described below, through their Program sponsor. After enrolling in the Program, an enrolled member (“Primary Account Holder”) may enroll a legal spouse or registered domestic partner (“Spouse”).
To be eligible for the Program, you: (i) must be 18 years of age or older; (ii) must be residing in one of the fifty States or the District of Columbia in the United States (not including its territories or possessions); (iii) must have a valid email address; and (iv) as Primary Account Holder, be accessing the program through your Program sponsor website. Program sponsor is the entity who is offering the Program to its eligible population(s). In addition to the eligibility parameters above, you may be eligible for the Program if you; (i) are a Spouse of a Primary Account Holder enrolled in the Program; (ii) reside in the same household as the Primary Account Holder, and (iii) have been directly enrolled in the Program by an enrolled Primary Account Holder. NOTE: The Spouse may only be enrolled in the Program directly by the enrolled Primary Account Holder.
2.1 Credit Card Required: This Section 2.1 applies to the enrolled Primary Account Holder. To enroll in the Program, you, as the Primary Account Holder, must have a valid American Express, Visa, MasterCard, or Discover credit card of which you are the named account holder or which you are authorized to use with the consent of the account holder. You will be required to provide valid credit card information to ASH at the time of enrollment so that applicable fees can be charged for your and, if applicable, your Spouse’s enrollment and the recurring monthly fee(s) (see Sections 2.2 and 2.3 below for applicable fee terms). Providing incomplete or incorrect credit card information may result in delay or decline of your enrollment(s). For information regarding how we keep your payment information secure, please see our Privacy Statement.
2.2 Enrollment Fee and Monthly Fee: This Section 2.2 applies to the enrolled Primary Account Holder. Any applicable Program enrollment fee (the “Enrollment Fee”), recurring monthly participation fee (the “Monthly Fee”), and, if applicable, Annual Maintenance Fees, will be posted within the Fitness Center Search on the Website accessed through the URL provided to you, as the Primary Account Holder, by your Program sponsor. The Enrollment Fee and the Monthly Fees for the current and second month are due at the time of enrollment. Each recurring Monthly Fee is applied as prepayment for the following month. Annual Maintenance Fees, if applicable, will be collected in the twelfth (12th) month of consecutive enrollment. Based on your fitness location selection(s), all required fees will be displayed during the enrollment process for your review and approval prior to payment. Except as expressly otherwise provided in Section 3 (Participant Cancellation) of these Terms, or except as otherwise required by law, payments of the Enrollment Fee, Monthly Fees and, if applicable, Annual Maintenance Fees are NON-REFUNDABLE to you, as the Primary Account Holder. ASH Fitness reserves the right to change the fees associated with this Program. If we do so, we will provide you with no less than 30 days’ Notice prior to the effective date of the change. The fees above may be subject to taxation. If so, the applicable tax will be shown online prior to completing payment. References to the Enrollment Fee, Monthly Fee, and Annual Maintenance Fees (if applicable), throughout this document include taxes, if any, applicable to those fees.
2.3 Conditions of Enrollment: As conditions to your enrollment in the Program, and except as expressly otherwise provided in Section 3 (Participant Cancellation) of these Terms:
- YOU AGREE to be bound by these Terms and our Privacy Statement.
- As Primary Account Holder, YOU AGREE to pay, and you authorize your credit card to be immediately charged, the Enrollment Fee and the current and second months’ Monthly Fees (as specified in Section 2.2 above) at the time of your enrollment and, if applicable, your Spouse’s enrollment.
- YOU AGREE to remain in the Program for at least two (2) months from the date of your enrollment (the “Introductory Period”).
- As Primary Account Holder, YOU AGREE that after the Introductory Period, your credit card will continue to be charged the Monthly Fee for each additional month you, and if applicable, your Spouse, remain in the Program, unless and until your participation is canceled in accordance with these Terms. Upon Primary Account Holder cancellation, your Spouse will no longer be eligible to participate in the Program and such participation in the Program will be canceled in accordance with these Terms.
- YOU AGREE that the information you submit and that we collect about you as part of the Program and through the Website may be shared with third parties in accordance with our Privacy Statement.
- You AGREE that ASH Fitness reserves the right to increase, modify, or otherwise change the Enrollment Fee, the Monthly Fee, any applicable Annual Maintenance Fee, the Introductory Period, or any other aspect or feature of the Program, at any time and for any reason. If ASH makes any changes to the Enrollment Fee, the Monthly Fee, any applicable Annual Maintenance Fees, or any material change to either the Introductory Period or any aspect or feature of the Program, ASH will provide Notice at least 30 days in advance of the effective date of such change.
- As the Primary Account Holder, YOU AGREE that the Enrollment Fee, Monthly Fees, and any applicable Annual Maintenance Fees are paid in order to ensure access to and the availability of the entire Program as a whole, and that no part of the Program is severable or individually compensable.
- As the Primary Account Holder, YOU AGREE that if access to one part of the Program is unavailable for a period of time, but the other parts remain available, no refund is due to you because you are enrolling in a comprehensive program. You have the right to cancel your participation and, if applicable, your Spouse’s participation in the Program in accordance with the terms of Section 3 below.
- YOU AGREE to receive any Notice of an amendment to these Terms by email from ASH to you at the email address you provide to ASH at the time of your registration on the Website or phone enrollment. You further AGREE that you will keep your email address current, which you can do by updating your account on the Website or by phone; and any Notice sent by ASH to the email address currently listed on your account is deemed official Notice related to these Terms. And you further AGREE that Notice WILL BE DEEMED RECEIVED BY YOU when ASH sends an email to the email address currently listed on your account. ASH is not responsible for your failure to receive Notices if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. Your continued payment of Monthly Fees, and your failure to timely cancel your and, if applicable, your Spouse’s participation in the Program, and/or continued use of the Program indicate your AGREEMENT to any changes/updates to the Program.
2.4 Declined Payment: If the charge of the applicable enrollment-related fees outlined in Section 2.2 above to the Primary Account Holder’s credit card is declined for any reason during the enrollment process, you and, if applicable, your Spouse will not be enrolled into the Program. If enrollment is successful and any charges to the credit card (e.g. the subsequent Monthly Fee) are declined for any reason thereafter, ASH will continue to attempt to charge the Primary Account Holder’s credit card for no longer than two (2) weeks. You, as Primary Account Holder, will be notified via the email address on file if your credit card is declined for any reason. If ASH’s attempts to charge your card remain unsuccessful, ASH will: (i) not complete enrollment if a declined payment occurs at the time of enrollment; or (ii) terminate your and, if applicable, your Spouse’s participation if a declined payment occurs after enrollment. In the event ASH terminates your and, if applicable, your Spouse’s participation due to a declined payment that occurs after enrollment, should you wish to re-enroll in the Program, you will be required to pay a new Enrollment Fee and commit to a new Introductory Period for yourself and, if applicable, your spouse.
2.5 How to Enroll: As the Primary Account Holder, you can enroll yourself and, if applicable, your Spouse in the Program by linking over from the website of your Program sponsor to the Website; or in certain limited cases where phone enrollment is made available. When enrolling in the Program, you will be required to confirm your agreement with these Terms and our Privacy Statement by affirmatively checking a box. If you receive telephonic support to enroll, ASH will direct you to the Active&Fit Direct Terms and our Privacy Statement; your failure to exercise your Buyer’s Right to Cancel, as set forth in Section 3.1 will confirm your agreement with these Terms and our Privacy Statement. NOTE: Access to the Active&Fit Direct is personal to you and may NOT be shared with or transferred to others. Sharing or transferring your access to enrollment with another may result in denial or revocation of your enrollment, as well as civil and/or criminal liabilities.
2.6 Enrollment Confirmation & Fitness Card: Upon a successful enrollment and completion of the enrollment process, you, as the Primary Account Holder, will receive a confirmation email as well as a fitness card to present to the fitness location on your first visit to that facility.
Once enrolled by the Primary Account Holder, the Spouse will receive a confirmation email and access to the Website to complete the registration process. As the Spouse, once you complete the registration process, including agreeing to the Terms of the Website, you will have access to your fitness card(s).
NOTE: The fitness card that is provided to you is personal to you and may NOT be shared with or transferred to others. Sharing or transferring your fitness card to another may result in immediate suspension or termination of your participation in the Program, as well as civil and/or criminal liabilities.
3. PARTICIPANT CANCELLATION
3.1 “Buyer’s Right to Cancel” Period: YOU, THE BUYER, AND IN YOUR ROLE AS PRIMARY ACCOUNT HOLDER, MAY CANCEL, WITHOUT ANY PENALTY OR OBLIGATION, YOUR AND, IF APPLICABLE, YOUR SPOUSE’S PARTICIPATION IN THE PROGRAM AT ANY TIME WITHIN THE TIME PERIOD SPECIFIED BELOW:
- IF YOU OR YOUR SPOUSE ARE A RESIDENT OF GEORGIA, YOU MAY CANCEL WITHIN SEVEN (7) BUSINESS DAYS (EXCLUDING SUNDAYS AND FEDERAL HOLIDAYS) FROM THE DATE OF ENROLLMENT.
- IF YOU OR YOUR SPOUSE ARE A RESIDENT OF RHODE ISLAND, YOU MAY CANCEL WITHIN TEN (10) BUSINESS DAYS (EXCLUDING SUNDAYS AND FEDERAL HOLIDAYS) FROM THE DATE OF YOUR ENROLLMENT.
- IF YOU OR YOUR SPOUSE ARE A RESIDENT OF NORTH DAKOTA OR THE DISTRICT OF COLUMBIA, YOU MAY CANCEL WITHIN FIFTEEN (15) DAYS FROM THE DATE OF ENROLLMENT.
- IF YOU OR YOUR SPOUSE ARE A RESIDENT OF ANY OF THE OTHER FIFTY STATES, YOU MAY CANCEL BEFORE MIDNIGHT OF THE FIFTH (5TH) BUSINESS DAY (EXCLUDING SUNDAYS AND FEDERAL HOLIDAYS) FROM THE DATE OF ENROLLMENT.
TO CANCEL DURING THE APPLICABLE TIME PERIOD INDICATED ABOVE, PLEASE SEND BY EMAIL OR MAIL YOUR WRITTEN CANCELLATION REQUEST, TO THE FOLLOWING ADDRESS NO LATER THAN THE APPLICABLE DEADLINE INDICATED ABOVE:
American Specialty Health Fitness, Inc
Attn.: Active&Fit Direct Cancellations
P.O. Box 509117
San Diego, California 92150-9117
Email: firstname.lastname@example.org including “Buyer’s Right to Cancel” in the subject line.
IF YOU CANCEL YOU OR YOUR SPOUSE’S PARTICIPATION PURSUANT TO THIS SECTION 3.1, ASH WILL REFUND IN FULL THE ENROLLMENT FEE(S) AND MONTHLY FEES YOU PAID FOR THE ENROLLMENT(S). ASH WILL MEASURE TIMELINESS BY COMPARING THE RECEIVED DATE OF YOUR EMAIL OR POSTMARKED ENVELOPE TO THE DATE OF ENROLLMENT(S) IN OUR RECORDS.
3.2 Cancellation During Introductory Period: After the applicable “Buyer’s Right to Cancel” period indicated in Section 3.1 above expires, participation in the Program is NON-CANCELLABLE during the remainder of the Introductory Period, except in the following limited circumstances:
- You or your Spouse become disabled and therefore are unable to participate in the Program for an extended period of time within the Introductory Period.
- If you or your Spouse should die during the Introductory Period.
If any of the above circumstances applies to you or your Spouse, you (or, in the event of your death, your estate) may cancel participation in the Program by calling ASH Customer Service at 1-844-646-2746, or 711 (TTY/TDD) during the hours of 5:00 AM and 6:00 PM (Pacific Time), Monday through Friday (excluding ASH holidays). You (or your estate, as applicable) may be required to provide documentation supporting the reason for the cancellation.
If you, as Primary Account Holder, (or your estate, as applicable) cancel pursuant to this Section 3.2, you (or your estate, as applicable) will be excused from any remaining obligations of the Introductory Period (including any Monthly Fee that would otherwise be due for the remainder of the Introductory Period) as of the cancellation date. NOTE: Upon Primary Account Holder cancellation, the Spouse will no longer be eligible to participate in the Program and such participation in the Program will be canceled in accordance with these Terms.
3.3 Cancellation After Introductory Period: After the completion of the Introductory Period, you, as Primary Account Holder may cancel your and, if applicable, your Spouse’s participation in the Program at any time on www.activeandfitdirect.com. You may also call ASH Customer Service at 1-844-646-2746, or 711 (TTY/TDD) during the hours of 5:00 AM and 6:00 PM (Pacific Time), Monday through Friday (excluding ASH holidays). NOTE: You, as the Primary Account Holder must notify ASH to cancel at least thirty (30) days prior to your and, if applicable, your Spouse’s next scheduled Monthly Fee payment due date to avoid any further credit card charge. Upon Primary Account Holder cancellation, the Spouse will no longer be eligible to participate in the Program and such participation in the Program will be canceled in accordance with these Terms.
4. RESERVATION OF RIGHTS BY ASH
ASH reserves the right to:
- modify any aspect of the Program (including, without limitation, the Enrollment Fee, the Monthly Fee, any applicable Annual Maintenance Fees, and/or the Introductory Period, and add or revise program features) at any time by amending these Terms pursuant to Section 2.3.
- discontinue the Program, or any portion thereof, entirely at any time upon advance Notice via email; and
- immediately suspend or terminate your participation in the Program and your account on the Website, in the event of any of the following: (i) a declined payment of the Primary Account Holder’s credit card (see Section 2.4 above); (ii) if ASH determines, in its sole judgement, that you are in violation of these Terms or any applicable law or that your use of the Program or the Website may expose ASH to liability of any kind, or may adversely affect the reputation or goodwill of ASH or the Program; or (iii) if you engage in offensive or disruptive behavior with any ASH staff and coach or at a fitness location, or (iv) if you engage in behavior at a fitness location that puts yourself or others at risk of harm or you cause actual harm to yourself or others.
5. PROGRAM SURVEYS AND TESTIMONIALS
5.1 Program Surveys: From time to time, ASH may (either directly or through outside vendors) conduct surveys to collect Program participants’ feedback about their experience with the Program. Your participation in such surveys is completely voluntary. Should you choose to participate, your survey responses will not be shared outside of ASH in a manner that personally identifies you. ASH and/or its outside vendors may anonymize your and other participants’ survey responses to compile aggregate Program data to help ASH evaluate and improve the Program, and ASH will be free to share such aggregate Program data with third parties.
5.2 Testimonials: From time to time, ASH may (either directly or through outside vendors) invite Program participants to give interviews and provide testimonials about their experience with the Program. Your participation in such interviews and testimonials is completely voluntary. Should you choose to participate, you agree that all audio and video recordings, transcripts, photographs, and other materials derived from your interviews and testimonials (including associated copyrights) will become the property of ASH and may be freely used, reproduced, published and distributed by ASH and its successors and assigns, and third parties authorized by ASH, throughout the world and in perpetuity, in any and all media (including online/social media, print media, and broadcast media).
6. ACTIVE&FIT DIRECT PROGRAM DETAILS
6.1 Active&Fit Direct Digital Fitness Program
The Active&Fit Direct Digital Fitness Program provides participants with a broad range of workout options:
- Digital workout video library available on the Website,
- Workout classes streamed daily on Facebook and YouTube,
- Active&Fit Direct Connected! Feature. A digital data aggregator to track your exercise activity.
- Access to a searchable library of digital education videos on fitness and exercise, including illustrations, animations, and interactive tools.
6.1.1 Active&Fit Connected! Tool: To use the Active&Fit Connected! tool you must provide your own wearable fitness device that is compatible with the Website. Full use of the Active&Fit Connected! tool requires a compatible wearable fitness device, internet access, and certain software (which may require periodic updates). The performance of the wearable fitness device may be affected by these factors. ASH will not purchase a device for you, nor will it reimburse you for the cost or replacement of a wearable fitness device. Your use of the Active&Fit Connected! tool serves as your consent for ASH to receive information about your tracked activity and to use that data to process. For information regarding ASH’s other uses of your personal information, please see our Privacy Statement.
6.2 Active&Fit Fitness Location Access
As participant in the Program, you have access to thousands of participating fitness locations across all 50 states and the District of Columbia, which may include fitness centers, fitness clubs, fitness studios, organizations that provide group exercise sessions, and other like entities providing fitness services.. The Active&Fit Networks of participating fitness locations is subject to change without Notice at any time based on network turnover due to additions, terminations, resignations or closures of fitness locations.
6.2.1 Access to Fitness Location Features: As a participant in the Program, you will have access to two comprehensive fitness networks: Standard Fitness Network and Premium Fitness Network (collectively “Active&Fit Networks”).
Fitness locations may require you to sign their standard membership agreement. However, such agreements should not impose any additional fees, unless you purchase access to non-standard services offered by the fitness location. Your membership may NOT cover all services that the fitness location may offer for an extra fee, and you would need to purchase access to such services directly from the fitness location.
6.2.2 Guest Pass: If you are interested in a participating fitness location but not ready to enroll in the Program, you may request a guest pass (Fitness Center Search will indicate which fitness locations offer guest passes). By requesting a guest pass you will register on the Website. Guest passes cannot be used by anyone other than the You. Your receipt of a guest pass authorizes ASH or its authorized third party to send you these reminder emails.
6.3 Active&Fit Direct Healthy Living Program:
As a participant in the Program (and if elected by your Program sponsor), you may have access to Active&Fit Direct Healthy Living Program (“Healthy Living Program”) which includes telephonic coaching with a trained coach. Coaching topics may include nutrition, exercise, and stress management. The Healthy Living Program is provided in support of American Specialty Health Fitness, Inc. who procures service from its affiliate American Specialty Health Management, Inc. (“ASH Management”). You will be required to separately agree to the Health Living Program’s Program Statement prior to participating in the program.
6.3.1 Coaching Sessions: Sessions are individualized, scheduled, and focus on setting goals, assessing progress, breaking down barriers, and providing encouragement and ongoing education to help you achieve health-related goals. The length of each coaching session will vary depending upon your needs but may not exceed thirty (30) minutes per session. Coaches will focus interventions on aspects of health behaviors that will result in improved, self-directed, and active engagement in health decision-making and improved health outcomes. You are responsible for making appointments for any coaching session and cancelling any appointment with sufficient notice to ASH Management. Repeated instances of no-shows or cancellations with insufficient notice may result in ASH removing you from the Healthy Living Program.
6.3.2 Educational Resources: To enhance your coaching experience, materials may be made available on the Website and may be referred to during coaching sessions or be included by your coach as coaching actions for you to review or complete: Weight Management, Stress Management, and Healthy Living guides. The guides will include sections on diet, exercise, relaxation, stress management, and other tools. Audio relaxation skills lessons may also be made available.
7. USE OF THE PROGRAM WEBSITE
7.1 Ownership: The Website, and all rights, title and interest therein and thereto (including, without limitation, all copyrights, moral rights, trademark rights, trade dress rights, trade secret rights, patent rights, and all other intellectual property or proprietary rights), are the property of ASH and/or its licensors/suppliers/third parties and are protected by U.S. and foreign intellectual property and other laws. Any unauthorized use or exploitation of the Website is strictly prohibited and may result in civil and/or criminal penalties. ASH and its licensors/suppliers reserve all rights not expressly granted herein. There are no implied rights or licenses granted to you under these Terms.
The term “Active&Fit” and the associated logo, “Active&Fit Direct” and the associated logo, “Active&Fit Direct Health Living,” and the slogan “Your Future Is Active&Fit”, are federally registered and unregistered service marks of ASH. You shall not display, disparage, dilute, or taint our marks or use any confusingly similar marks or use our marks in such a way that would misrepresent who the proper owner of such marks is. Any permitted use of our marks by you shall inure to our benefit. Content of the Website is copyrighted Copyright © 2004-2021, American Specialty Health Incorporated or its licensors. All rights reserved.
Third-party trademarks and service marks appearing on the Website are the property of their respective owners.
7.2 ASH’s Limited License to You: Subject to your compliance with these Terms and all applicable laws, ASH hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access the Website solely for your own personal and lawful use within the United States. The foregoing license permits you to print and download (if enabled by the Website) certain Program materials from the Website for your own personal and non-commercial use only, provided that: (i) you do not transmit, reproduce, distribute, or provide such materials to others; and (ii) you retain all copyright and other proprietary rights and legal Notices contained in such materials. Any other use of such materials for public or commercial purposes, including any copying, reproduction, modification, sale, distribution, transmission, republication, display, posting, performance, or other exploitation thereof by any means or medium is strictly prohibited. You acknowledge and agree that the above license is immediately revocable and terminable by ASH, if ASH determines, in its sole judgement, that you are in violation of these Terms or any applicable law.
7.3 Participant Account: By registering a Program participant account on the Website, you represent and warrant that all account information you submit to ASH is your own information and is truthful and accurate. Account access is username- and password-protected, and you are responsible for keeping your account login safe and secure. You may change your account password at any time by logging into your account on the Website, going to “My Account”, and following on-screen instructions. You may NOT transfer or share your account login to or with any other person without the express prior written consent of ASH. Unauthorized transfer or sharing of one’s account login may result in immediate account suspension or termination by ASH. It is your responsibility to notify ASH of any change in your account information, including your email address. You should notify ASH immediately in the event your account login has been stolen, lost, or used by another without your permission.
You acknowledge and agree that ASH may immediately suspend or terminate your account and deactivate your account login, if: (i) ASH has any reason to believe that you have misrepresented or provided false information to ASH; or (ii) ASH determines, in its sole judgement, that you are in violation of these Terms or any applicable law or that your use of the Website may expose ASH to liability of any kind, or may adversely affect the reputation or goodwill of ASH or the Program.
7.3.1 Accessing Your Account: If you access and use the Website on your smartphone, tablet or other mobile device, you are responsible for all charges (including data and messaging charges) relating to use of the Website through your mobile device. We do not guarantee that the Website or any of the related Program features are compatible with any particular operating system, browser, mobile device or other software or equipment.
7.4 Prohibited Uses: Any unauthorized or unlawful use of the Website is strictly prohibited. Specifically, you may NOT:
- use the Website for any unlawful purpose, including, without limitation: operating any scam or fraudulent scheme (such as a pyramid or Ponzi scheme); impersonating another, or making unauthorized use of another’s information; disseminating junk email, spam, or other unsolicited and unwanted messages or communications; or collecting personal information from or about others (including click farm customers) without their knowledge or consent, including through “phishing” or under any other false pretense;
- use the Website to upload, store, post, display, transmit, publish or distribute any material that: (i) is unlawful; threatening; harassing; abusive; hateful; discriminatory; derogatory; obscene; vulgar; pornographic; excessively violent; false, deceptive or misleading; defamatory or libelous; or otherwise offensive; (ii) promotes, solicits or aids crimes or illegal activities; (iii) promotes or solicits violence; (iv) promotes or solicits gambling, public intoxication, underage drinking, or drug abuse; (v) promotes or solicits animal cruelty; (vi) contains, promotes, or links to fake offers, scams, or other fraudulent schemes (such as pyramid schemes and Ponzi schemes); (vii) contains, promotes, or links to viruses, worms, Trojan horses, spyware, malware, ransomware, or other malicious, harmful or disruptive code or material that is designed to damage, interfere with, intercept, lock out, or expropriate any software, hardware, information or data; or (viii) violates or misappropriates another’s copyright, trademark, trade secret, patent, right of publicity, right of privacy, contractual right, or other property or proprietary right of any kind (including, without limitation: using another’s name, likeness, photo, or other identity without consent);
- make copies of (except as permitted in Section 7.2 above), modify, alter, translate, or otherwise create derivative works from, or transmit, publish, sell, transfer, license, or otherwise distribute (other than as expressly permitted by applicable law), the Website;
- use the Website for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of developing any product or service to compete against ASH or the Program;
- interfere in any way with the operation of the Website (or other related Program features), or any server, network or system associated therewith, including, without limitation: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Website (or other related Program features), or any server, network or system associated therewith; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another’s account that you are not expressly authorized to access;
- use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, or automated agents or scripts) to access the Website, or to register multiple accounts on the Website, or to generate automated searches, requests, or queries to the Website, or to strip, scrape, extract, or mine data or information from the Website (except, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file);
- remove, erase, conceal, alter, or otherwise tamper with ASH or third-party intellectual property, attribution, or other proprietary rights or legal Notices included in the Website;
- link to, frame, or otherwise create a browser or border environment around, the Website, without the express prior written consent of ASH;
- use any trademark or service mark of ASH: (i) for advertising, promotional, marketing, sale, or any other commercial or for-profit purposes (unless with the express prior written consent of ASH); (ii) in any way that falsely suggests or implies an association or affiliation with, or endorsement, sponsorship or approval by, ASH or the Program or the Website; or (iii) in any way that defames or disparages ASH or the Program or the Website; or otherwise use the Website in a way that violates these Terms or any applicable law.
7.5 Participant-Submitted Material: The Program and the Website may permit you to submit, enter and upload information (whether by electronic mail or other means), including but not limited to questions, comments, testimonials, or suggestions (collectively, "User Submissions”). With regard to your User Submissions, you agree:
- Your User Submissions will be governed by the Website Privacy Statement.
- You are entirely responsible for all of your User Submissions. You represent and warrant that you have the necessary rights to provide your User Submissions to us and that your User Submissions:
- (1) is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality. No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and ASH by reason of your submission. Your submission is not returnable and may be retained indefinitely by ASH and its successors and assigns; (2) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights; (3) will not violate any law, statute, ordinance or regulation; (4) will not violate any third party's rights of publicity or privacy; (5) will not be defamatory, unlawfully threatening or harassing, harmful, to minors in any way, or otherwise offensive or inappropriate; (6) will not be obscene or contain child pornography; (7) will not contain any viruses, worms, time bombs or other computer programming code that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; and (8) Except as expressly otherwise provided in this User Agreement or the Privacy Statement, any other communication(s) or material(s) you transmit to the Website by electronic mail or other medium, including any questions, comments, or suggestions, is and will be treated as non-confidential and non-proprietary information and may be used by ASH, ASH’s outside vendors, or its affiliates or related entities for any purpose, including but not limited to, reproductions, disclosure, transmission, publication, broadcast, and postings. Furthermore, ASH, ASH’s outside vendors and its affiliates and related entities are free to use any information, ideas, concepts, inventions, or techniques contained in any communication you send to the Website for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products or services. If you wish to keep any information, ideas, concepts, inventions or techniques private or proprietary, do not submit them to the Website.
- By providing User Submissions, you grant ASH a perpetual, irrevocable, non-exclusive, transferable, sub licensable, worldwide, royalty-free, fully paid up right and license to access, use, create derivative works of, display, perform, distribute and otherwise exploit your User Submissions for any purpose, subject to any restrictions under applicable law, and subject to our Privacy Statement. If you wish to keep any information, ideas, concepts, inventions or techniques private or proprietary, do not submit them to the Program or Website.
7.6 Use Website At Own Risk: BY USING THE WEBSITE OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL OBTAINED FROM THE WEBSITE, YOU ASSUME ANY AND ALL RISKS OF DAMAGE TO YOUR COMPUTER AND/OR MOBILE DEVICE AND LOSS OR CORRUPTION OF DATA RESULTING FROM SUCH USE. ASH IS NOT RESPONSIBLE FOR ANY TERMINATION OF YOUR CONNECTION TO THE WEBSITE, EVEN IF SUCH TERMINATION OF CONNECTION AFFECTS YOUR USE OF THE WEBSITE.
8. THIRD-PARTY SITES/PRODUCTS/SERVICES
9. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY
BY USING THE PROGRAM AND/OR THE WEBSITE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE AS FOLLOWS:
(i) THE PROGRAM, THE WEBSITE, AND ANY AND ALL INFORMATION, PRODUCTS, SERVICES, AND OTHER MATERIALS AVAILABLE THROUGH THE PROGRAM AND/OR THE WEBSITE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ASH AND ITS LICENSORS/CONTENT PROVIDERS/SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, THE WEBSITE, AND ANY AND ALL INFORMATION, PRODUCTS, SERVICES, AND OTHER MATERIALS AVAILABLE THROUGH THE PROGRAM AND/OR THE WEBSITE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE AND NON-INFRINGEMENT, WARRANTIES AGAINST COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASH AND ITS LICENSORS/CONTENT PROVIDERS/SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY THAT THE PROGRAM, THE WEBSITE, OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL AVAILABLE THROUGH THE PROGRAM OR THE WEBSITE, WILL BE ERROR-FREE, COMPLETE, ACCURATE, USEFUL, OR SECURE, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR THAT ANY DEFECT OR ERROR WILL BE CORRECTED. PRICE AND AVAILABILITY INFORMATION PERTAINING TO ANY PRODUCT OR SERVICE AVAILABLE THROUGH THE PROGRAM OR THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE.
(ii) YOUR USE OF THE PROGRAM, THE WEBSITE, AND/OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL OBTAINED FROM THE PROGRAM OR THE WEBSITE, IS ENTIRELY AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE PROGRAM OR THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PROGRAM AND WEBSITE.
(iii) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL ASH OR ANY OF ITS LICENSORS/CONTENT PROVIDERS/SUPPLIERS BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE PROGRAM, THE WEBSITE, OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL OBTAINED FROM THE PROGRAM OR THE WEBSITE, EVEN IF ASH AND RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
(iv) BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, DAMAGES OR LIABILITIES, SOME OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. ACCORDINGLY, NOTHING IN THIS SECTION 9 AFFECTS ANY WARRANTIES, DAMAGES OR LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10. PARTICIPANT INDEMNIFICATION AND RELEASE
10.1 Participant Indemnification: By using any and/or all of the Program and/or the Website, you agree to indemnify and hold harmless ASH and its licensors/content providers/suppliers, ASH’s successors, assigns and licensees, as well as their respective officers, directors, employees, agents and representatives (collectively, “ASH and Related Parties”), from and against any and all claims, actions, causes of action, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or related to: (i) your violation of these Terms or any applicable law; (ii) your use of any fitness location through the Program, including any of your activities at such fitness location; (iii) any injury (including death), damage or loss incurred by you, or caused to any third party by you, in connection with or in the course of your participation in the Program; (iv) your use of any information, product, service, or other material obtained from the Program or the Website, including your use of any Third-Party Site/Product/Service (see Section 8 of these Terms); and/or (v) any material submitted by you (see Section 7.5 of these Terms).
10.2 Participant Release: By using any and/or all of the Program and/or the Website, you also hereby release and forever discharge (to the fullest extent permitted by applicable law) ASH and Related Parties from any and all claims, actions, causes of action, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or related to: (i) the Program; (ii) the Website; (iii) any information, product, service, or other material available through the Program or the Website, including any Third-Party Site/Product/Service (see Section 8 of these Terms); and/or (iv) your use of (or inability to use), or your reliance upon, the Program, the Website, or any information, product, service, or other material obtained from the Program or the Website, including any Third-Party Site/Product/Service (see Section 8 of these Terms).
IF YOU ARE A CALIFORNIA RESIDENT, YOU FURTHER HEREBY WAIVE ALL RIGHTS AND BENEFITS UNDER CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING RELEASE – CALIFORNIA CIVIL CODE SECTION 1542 PROVIDES:
GENERAL RELEASE: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
11.1 Waiver of Right to Pursue Class Action Claims
Unless prohibited by law, you agree to only resolve disputes with us on an individual basis and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity. YOU AND ASH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
11.2 Waiver of the Right to Seek Public Injunctive Relief
You agree to waive any right to seek public injunctive relief. If this provision is found to be unenforceable, you agree that a claim for public injunctive relief will be brought in arbitration pursuant to the terms herein, and that you expressly acknowledge you are waiving any and all rights to bring a public injunctive relief claim in court.
11.3 Notice of Dispute
Prior to filing a demand for arbitration, you must provide notice and an opportunity to respond to ASH and/or ASH must provide Notice and an opportunity to respond to you.
You must send a Notice of Dispute describing the dispute by email to TandCs@ashn.com or by certified mail to ASH as detailed in Section 12.3. ASH then has 30 days from receipt of your Notice of Dispute to respond. If you deem ASH’s response unsatisfactory, you may file a demand for arbitration as detailed in Section 11.4 below.
ASH must send a Notice of Dispute describing the dispute to you at the email address associated with your account. You then have 30 days from receipt of ASH’s Notice of Dispute to respond. If ASH deems your response unsatisfactory, ASH may file a demand for arbitration as detailed in Section 11.4 below.
11.4 Agreement to Arbitrate Claims
You agree to arbitrate all disputes between you and us. If a dispute arises between you and us relating to the Website or these Terms, you and we agree that the dispute shall be resolved by final and binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations (“AAA Rules”). You and we agree to the following rules relating to any arbitration proceeding:
- YOU AND ASH WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
- THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED
- The venue for all disputes arising under these Terms shall be, but you and we may agree to conduct the arbitration by telephone, or online and/or solely based on written submissions. You hereby waive any right to claim that such location is an inconvenient forum and covenant not to sue us in any other forum. However, if the parties choose to conduct in-person proceedings and the arbitrator determines that this location imposes unreasonable burdens, the arbitrator has the power to order that the proceedings take place elsewhere.
- The arbitrator will have the power to grant whatever relief would be available in court under law or in equity (including attorney’s fees) and any award of the arbitrator will be final and binding on each of the parties.
- The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review.
- Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Barring extraordinary circumstances, the arbitrator will issue a decision within 120 days from the date the arbitrator is appointed, which may be extended 30 days in the interests of justice.
- All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
- The award of the arbitrator will be in writing and will not include any statement setting forth the reasons for the disposition of any claim. Either you or we may seek an injunction at any time from any court of competent jurisdiction as necessary to protect the rights or property of you or us pending the completion of arbitration.
- Either you or we may start arbitration proceedings. Any arbitration between you and ASH Fitness, Inc. will take place under AAA Rules, as modified by this Arbitration Agreement. You and ASH Fitness, Inc. agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. ASH Fitness, Inc. can also help put you in touch with the AAA.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, ASH will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse ASH for all fees associated with the arbitration that ASH paid on your behalf which you otherwise would be obligated to pay under the AAA Rules.
12.1 Electronic Communications: By participating in the Program, including using the Website, you consent to receiving communications from ASH electronically, including emails and (if you have an account on the Website) messages posted to your account (“Notice”). You acknowledge and agree that all agreements, Notices pursuant to Section 2.3, disclosures, and other communications that ASH provides to you electronically satisfy any legal requirement that the same be in writing.
12.2 Assignment: ASH may assign these Terms or any of its rights under these Terms, to any third party without your prior consent. These Terms will inure to the benefit of ASH’s successors, assigns and licensees.
12.3 Notices: Except as expressly otherwise indicated in these Terms or by ASH, all your notices to ASH under these Terms must be in writing and delivered in person, electronic mail or by registered or certified mail to the following address:
P.O. Box 509117
San Diego, CA 92150-9117
Your continued payment of Monthly Fees as the Primary Account Holder, and your failure to timely cancel your participation in the Program, and/or continued use of the Program indicate your AGREEMENT to any changes/updates to the Program.
12.4 Changes/Updates: From time to time, ASH may make changes/updates to the Program, the Website, and/or these Terms to accommodate new technology, industry practices, regulatory requirements, or for other purposes including any changes in the Enrollment Fee or Monthly Fee. ASH will provide you Notice of changes pursuant to Sections 2.3, 4 and 11.4. ASH reserves the right to make non-material changes without any Notice.
12.5 Entire Agreement; Conflict: These Terms, together with our Privacy Statement, and if applicable the Healthy Living Program Statement, constitute the entire and complete agreement and understandings between you and ASH concerning the Program and the Website. In the event of any inconsistency or conflict between these Terms and information contained in any Program materials (including, without limitation, print or electronic brochures, newsletters, pamphlets, handouts, flyers, or other informational, advertising, promotional, or publicity materials that relate to the Program and/or the Website, whether or not prepared by ASH), the provisions of these Terms shall prevail and control. The Program Statement for the Healthy Living Program will prevail and control in the event of any inconsistency or conflict between that Program Statement and these Terms as applied to that program. You will be required to separately agree to the Healthy Living Program’s Program Statement prior to participating in that program.
12.6 Governing Law and Jurisdiction: This User Agreement shall be construed, governed by, and enforced solely and exclusively in accordance with the laws of the State of Indiana, without giving effect to its conflict of laws and provisions of your actual state or country of residence.
12.7 Waiver: No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and ASH’s failure to assert any right under these Terms or to enforce any provision of these Terms shall not be deemed a waiver of such right or provision.
12.8 Third Party Beneficiary:
You acknowledge and agree that (i) the provisions of these Terms that relate to arbitration, limitation on liability, disclaimers, indemnities and waiver and release (these sections constituting the “Specified Sections”) shall apply both with respect to ASH and the third party providers of the content that ASH makes available to you through the Website or Program (each, a “Content Provider”); and (ii) each applicable Content Provider shall be a third party beneficiary hereunder for purposes of the Specified Sections, is entitled to the applicable rights and benefits set forth in the Specified Sections, and may enforce the provisions in the Specified Sections as if it were a party to these Terms.
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