Program and Website Terms & Conditions
Effective February 7, 2019
Welcome to Active&Fit DirectTM, an exercise and fitness 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”), 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 Active&Fit Direct Program website located at www.activeandfitdirect.com (the “Website”). If you do not agree with anything stated in these Terms or in our Privacy Statement, you should not join the Program.
ABOUT THE PROGRAM: Active&Fit Direct is a program that gives participants access to the Active&Fit network of participating fitness centers. The Active&Fit Direct network of contracted Fitness Centers is subject to change at any time based on network turnover due to additions, terminations, resignations or closure of Fitness Centers. By joining the Program, participants will have basic membership access to participating fitness centers of their choice. The Program requires payment of an enrollment fee and a recurring monthly fee. Each recurring monthly fee is applied as prepayment for the following month. If you have questions about the Program, please contact ASH using the contact information posted at https://www.activeandfitdirect.com/ContactUs . 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.
NOTICE TO CALIFORNIA RESIDENTS: Pursuant to Section 17538 of the California Business and Professions Code, prior to accepting payment from a buyer 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.
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 is 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 and 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 Fitness Center Search feature. Such interactive tools are in no way intended as, nor are a substitute for, qualified, expert medical diagnosis, advice, counseling, or treatment. If you or your loved ones 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.
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) be accessing the program through your Program sponsor website. Program sponsor is the entity who is offering the Active&Fit Direct program to its eligible population(s).
2.1 Credit Card Required: To enroll in the Program, you 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 enrollment and the recurring monthly fee (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. For information regarding how we keep your payment information secure, please see our Privacy Statement.
2.2 Enrollment Fee and Monthly Fee: The Program enrollment fee (the “Enrollment Fee”) and recurring monthly participation fee (the “Monthly Fee”) is shown on the URL provided to you by your Program sponsor. The Enrollment Fee and the 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. 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 and the Monthly Fees are NON-REFUNDABLE. 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 and Monthly Fee 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.
- 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 enrollment.
- YOU AGREE to remain in the Program for at least three (3) months from the date of your enrollment (the “Introductory Period”). Accordingly, YOU AGREE to pay, and you authorize your credit card to be charged, the Monthly Fee for the third and last month of the Introductory Period.
- YOU AGREE that after the Introductory Period, your credit card will continue to be charged the Monthly Fee for each additional month you remain in the Program, unless and until your participation is 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 change the Enrollment Fee and/or Monthly fee and/or the Introductory Period and if we do so, we will provide you with at least 30 day’s notice prior to the effective date of the change.
2.4 Declined Payment: If the charge of the applicable enrollment-related fees outlined in Section 2.2 above to your credit card is declined for any reason during your enrollment process, you will not be enrolled into the Program. If your enrollment is successful and the charge to your credit card (e.g. the subsequent Monthly Fee) is declined for any reason thereafter, ASH will continue to attempt to charge your card for no longer than two weeks. You will be notified via email to the 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 your enrollment if a declined payment occurs at the time of enrollment; or (ii) terminate your participation if a declined payment occurs after enrollment. In the event ASH terminates your 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 three (3) month Introductory Period.
2.5 How to Enroll: There are two ways to enroll: (i)linking over from the website of your Program sponsor to enroll online (recommended); or (ii) by calling the toll-free number at 1-844-646-2746, or 711 (TTY/TDD) to enroll over the phone. When enrolling on the Website, you will be required to confirm your agreement with these Terms and our Privacy Statement by affirmatively checking a box. If you enroll via telephone, ASH will send copies of these Terms and our Privacy Statement to the email address you provide to us over the phone. 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, excluding the option to invite family members.
2.6 Enrollment Confirmation & Fitness Card: If your enrollment is successful, you will receive a confirmation email regarding your enrollment, as well as a downloadable and printable fitness card. You will need to present this card to the Fitness Center on your first visit to that facility. 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
2.7 Access to Fitness Center Features: As a participant in the Program, you will have basic membership access to Active&Fit Direct contracted Fitness Centers. Depending on the specific services available at the Fitness Center, your basic membership will give you access to standard fitness club or exercise center services, which may include (again, depending availability at the Fitness Center): access to cardiovascular equipment; free weights; resistance training equipment; group exercise classes (yoga, dance, Pilates, etc.); and, where available, amenities such as saunas, steam rooms, and whirlpools. However, your basic membership will NOT cover any non-standard services that the Fitness Center may offer for an extra fee, and you would need to purchase access to such non-standard services directly from the Fitness Center.
Please note that the Fitness Center may require you to sign its standard membership agreement. However, such agreement should not charge you any additional fee, unless you purchase access to non-standard services offered by the Fitness Center.
2.8 Guest Pass: If you are interested in a participating fitness center but not ready to enroll in the Program, you may submit a request to ASH via the Website for a guest pass (if one is offered by the fitness center you are interested in). Guest passes cannot be used by anyone other than the registered member. Not all participating fitness centers offer guest passes. The Website may (but no guaranty) allow you to look up which fitness centers offer a guest pass and which do not. If you request a guest pass and do not enroll in the Program within fourteen (14) days, you may receive emails from ASH (or from a third party authorized by ASH) reminding you to enroll. Your request of a guest pass authorizes ASH or its authorized third party to send you these reminder emails.
3. PARTICIPANT CANCELLATION
3.1 “Buyer’s Right to Cancel” Period: YOU, THE BUYER, MAY CANCEL, WITHOUT ANY PENALTY OR OBLIGATION, YOUR PARTICIPATION IN THE PROGRAM AT ANY TIME WITHIN THE TIME PERIOD SPECIFIED BELOW:
- IF YOU ARE A RESIDENT OF GEORGIA, YOU MAY CANCEL WITHIN SEVEN (7) BUSINESS DAYS (EXCLUDING SUNDAYS AND FEDERAL HOLIDAYS) FROM THE DATE OF YOUR ENROLLMENT.
- IF YOU 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 ARE A RESIDENT OF NORTH DAKOTA OR THE DISTRICT OF COLUMBIA, YOU MAY CANCEL WITHIN FIFTEEN (15) DAYS FROM THE DATE OF YOUR ENROLLMENT.
- IF YOU 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 YOUR ENROLLMENT.
TO CANCEL DURING THE APPLICABLE TIME PERIOD INDICATED ABOVE, PLEASE SEND BY 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
IF YOU CANCEL PURSUANT TO THIS SECTION 3.1, ASH WILL REFUND IN FULL THE FEES YOU PAID FOR THE ENROLLMENT. ASH WILL MEASURE TIMELINESS BY COMPARING THE POSTMARK DATESTAMP TO THE DATE OF YOUR ENROLLMENT 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 move your residence more than 15 miles from the participating fitness center you have chosen and you are unable to find a similar participating facility that meets your needs in the area that you have relocated to.
- The participating fitness center you have chosen closes, ceases to participate in the Program, stops offering services important to your selection of that center, or relocates and another participating fitness center that meets your needs is not available in your area.
- You become disabled and are unable to participate in physical activity at your chosen fitness center or any other participating fitness center in your area for an extended period of time within the Introductory Period.
- If you should die during the Introductory Period, your estate may cancel your enrollment
If any of the above circumstances applies to you, you (or, in the event of your death, your estate) may cancel your 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 your cancellation.
If you (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.
3.3 Cancellation After Introductory Period: After the completion of the Introductory Period, you may cancel your participation in the Program at any time 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), or by logging into your account on the Website and submitting your cancellation request online. NOTE: You must notify ASH to cancel at least thirty (30) days prior to your next scheduled Monthly Fee payment due date to avoid any further credit card charge.
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, and/or the Introductory Period) at any time by amending these Terms and Conditions. If we modify a fee or make a material change to the Program, we will provide you with no less than 30 days’ notice prior to the effective date of the change;
- discontinue the Program entirely at any time upon advance written notice; 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 (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 at a fitness center, or you engage in behavior at a fitness center 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. USE OF THE PROGRAM WEBSITE
6.1 Ownership: The Website, 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.) (collectively, “Contents/Elements”), 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, and are protected by U.S. and foreign intellectual property and other laws. Other than a limited license to use as specified in Section 6.2 below, you have no other right or license with respect to the Website or any of its Contents/Elements. Any unauthorized use or exploitation of the Website or any of its Contents/Elements 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, and the slogan “Your Future Is Active&Fit”, are federally registered service marks of ASH; and the term “Active&Fit Direct” is an unregistered service mark of ASH. Other than for the purpose of making a truthful and non-misleading reference to the Program and/or the Website (including an indication that you are a participant of the Program, if true and accurate), you may NOT use any trademark or service mark of ASH without the express prior written consent of ASH.
Third-party trademarks and service marks appearing on the Website are the property of their respective owners.
6.2 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 (including its Contents/Elements) 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, distribute, or provide such materials to others; and (ii) you retain all copyright and other proprietary rights and legal notices contained in such materials. 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 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.
6.3 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.
6.4 Prohibited Uses: Any unauthorized or unlawful use of the Website is strictly prohibited. Specifically, you may NOT:
- use the Website or any of its Contents/Elements 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 6.2 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 or any of its Contents/Elements;
- 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 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 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 or any of its Contents/Elements;
- link to, frame, or otherwise create a browser or border environment around, the Website or any of its Contents/Elements, 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 or any of its Contents/Elements in a way that violates these Terms or any applicable law.
6.5 Participant-Submitted Material: If you submit any idea, comment, review, testimonial, suggestion, recommendation, photo, video, or other material (whether or not related to the Program) to ASH via the Website, you acknowledge and agree as follows:
(i) Your submission 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.
(ii) You represent and warrant that your submitted material does not contain any confidential or proprietary information of others and does not violate any third-party right or any applicable law.
(iii) ASH and its licensors/suppliers, successors, assigns, and licensees will be free, without any obligation or restriction, to use your submitted material, in whole or in part, for any and all purposes, whether commercial or noncommercial (including, without limitation, advertising, marketing, sale, and product/service development), throughout the world and in perpetuity.
6.6 Active&Fit Connected! Tool: To use the Active&Fit Connected! tool you must have a 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. You must provide your own wearable fitness device that is compatible with the Website to use the Active&Fit Connected! tool. 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 and administer available awards to you under the program. For information regarding ASH’s other uses of your personal information, please see our Privacy Statement.
6.7 Use Website At Own Risk: BY USING THE WEBSITE (INCLUDING ANY OF ITS CONTENTS/ELEMENTS) 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.
7. THIRD-PARTY SITES/PRODUCTS/SERVICES
8. 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 (INCLUDING ALL ITS CONTENTS/ELEMENTS), 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 LICENCORS/SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, THE WEBSITE (INCLUDING ALL ITS CONTENTS/ELEMENTS), 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 LICENCORS/SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY THAT THE PROGRAM, THE WEBSITE (INCLUDING ANY OF ITS CONTENTS/ELEMENTS), OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL AVAILABLE THROUGH THE PROGRAM OR THE WEBSITE, WILL BE ERROR-FREE, COMPLETE, 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 (INCLUDING ITS CONTENTS/ELEMENTS), 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 LICENCORS/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 (INCLUDING ANY OF ITS CONTENTS/ELEMENTS), 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 8 AFFECTS ANY WARRANTIES, DAMAGES OR LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. PARTICIPANT INDEMNIFICATION AND RELEASE
9.1 Participant Indemnification: By using the Program and/or the Website, you agree to indemnify and hold harmless ASH and its licensors/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 center through the Program, including any of your activities at such fitness center; (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 7 of these Terms); and/or (v) any material submitted by you (see Section 6.5 of these Terms).
9.2 Participant Release: By using 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 (or any of its Contents/Elements); (iii) any information, product, service, or other material available through the Program or the Website, including any Third-Party Site/Product/Service (see Section 7 of these Terms); and/or (iv) your use of (or inability to use), or your reliance upon, the Program, the Website (or any of its Contents/Elements), or any information, product, service, or other material obtained from the Program or the Website, including any Third-Party Site/Product/Service (see Section 7 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: EXTENT. 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.
10.1 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.
10.2 Electronic Communications:By using the Website, you are communicating with ASH electronically, and you consent to receiving communications from ASH electronically, including emails and (if you have an account on the Website) messages posted to your account. You acknowledge and agree that all agreements, notices, disclosures, and other communications that ASH provides to you electronically satisfy any legal requirement that the same be in writing.
10.3 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.
10.4 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 or by registered or certified mail to the following address:
P.O. Box 509117
San Diego, CA 92150-9117
10.5 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 with notice if the changes/updates are material and, where required by applicable law, ASH will obtain your consent. Unless expressly otherwise agreed, all material changes/updates will apply prospectively only. If you have a participant account on the Website, ASH may ask you to affirmatively agree to the changes/updates (e.g., by checking a box or clicking a button) at the time of your next account login on the Website.
10.6 Entire Agreement; Conflict: These Terms, together with our Privacy 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.
10.7 Governing Law and Jurisdiction: These Terms shall be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States (without giving effect to the conflict of laws provisions thereof). Any action or proceeding arising out of or related to the Program, the Website, or these Terms must be brought in the state or federal courts located in the San Diego County, California, and you and ASH consent to the exclusive personal jurisdiction of such courts.
10.8 Severability: If any provision of these Terms is deemed invalid, illegal or unenforceable by a court of competent jurisdiction, the invalidity, illegality or unenforceability of such provision shall not affect the remaining provisions of these Terms, all of which shall remain in full force and effect.
10.9 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.
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