TERMS AND CONDITIONS
a) Definitions. The terms “we,” “us,” and “our” refer to Kyrohs Ventures, Inc. and its subsidiaries and affiliates (collectively, “VaryActive”). The term provided pursuant to these terms and conditions (“Terms and Conditions” or “Terms”). The terms “you” and “yours” refer to the individual or company registering for or using the services offered by any VaryActive website, mobile application (such as for iPhone or Android) or content, or products and/or services made available through VaryActive (collectively, the “Site”).
b) Acceptance of Terms. By accessing and/or using the Site, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site.
c) Amendment of Terms. VaryActive may amend these Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site after such posting constitutes your consent to be bound by the Terms, as amended.
c) Additional Terms. In addition to these Terms, when using particular plans, offers, products, services or features, you will also be subject to any additional posted guidelines, or rules applicable to such plan, offer, product, service or feature, which may be posted and modified from time to time. All such additional terms are hereby incorporated by reference into the Terms, provided that in the event of any conflict between such additional terms and the Terms, the Terms shall control.
2. VARYACTIVE’s PAY-PER-USE MODEL
a) Pay-Per-Use. VaryActive is a pay-per-use service that enables VaryActive users to reserve and schedule a wide range of fitness and recreational classes and services offered and operated by fitness studios, gyms, trainers, Facilities or other third parties that partner with VaryActive (“Facilities”). Through the VaryActive Site you can access third party products and services. VaryActive itself is not a gym, fitness studio or service provider and does not own, operate or control any of the classes, services or facilities accessible through the Site.
c) Available Classes. Each user may, at any time, view available classes at the Facilities currently offering classes to VaryActive users via the Site (“Available Classes”) to be used to visit any Facility of their choice available to such user through our pay-per-use model. VaryActive reserves the right to change from time to time the number of Available Classes, geography, Facility or otherwise. We also may change the number of reservations a user can make and canceled or misses class a user may incur.
d) Special Offers. We may offer a number of special or discounted deals on classes at Facilities, including special promotional classes or memberships, with differing conditions and limitations. We reserve the right to modify, terminate or otherwise amend our pay-per-use model for such special offers.
e) No Guarantee of Availability. VaryActive makes no guarantee on the availability of particular Facilities, Facility locations, classes or other inventory, and availability may change over time.
f) Use of VaryActive. Your VaryActive profile is personal to you and you agree not to create more than one account. Users cannot transfer or gift classes to third parties, including other VaryActive users. VaryActive may not be used for commercial purposes. To use your VaryActive profile you must have access to the Internet. We continually update and test various aspects of the VaryActive model. We reserve the right to, and by using our service you agree that we may, include you in or exclude you from these tests without notice.
a) Pay-Per-Use Billing. By purchasing a class or classes at a Facility through the Site, you authorize us to charge you for such class at the advertised amount, which may change from time to time. You acknowledge that the advertised amount per class may vary for reasons that may include differing amounts due to promotional offers and/or changing or adding a class, and you authorize us to charge your Payment Method for such advertised amount immediately or within twenty-four (24) hours of your selection of the class. You also authorize us to charge you any other fees you may incur in connection with your use of the Site, such as any applicable sign-up fee, taxes or cancellation or late fees, as further explained below.
b) Refunds and Cancellation. Your Payment Method will be charged the full advertised amount at the time of booking.
If your Payment Method has been charged and the Facility cancels such class, your Payment Method will receive a full refund. You must allow VaryActive seventy-two (72) hours to complete such refund.
If you cancel your class more than twenty-four (24) hours before the class start time, VaryActive will refund the full amount paid minus a $3.00 service fee. You must allow VaryActive seventy-two (72) hours to complete such refund.
If you do not cancel your class more than twenty-four (24) hours before the class start time and the Facility does not cancel such class, no refund will be available to you.
If you fail to attend a class which was reserved through VaryActive, your Payment Method will be charged the advertised amount, which includes taxes and fees, and no refund will be available to you.
Any additional discounts or refunds that we may choose to provide are in our sole discretion and do not entitle you to any future discounts or refunds in the future for similar instances.
c) Payment Methods. You may edit your Payment Method information by logging online and editing it under “My Account” and then “Settings”. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not edit your Payment Method information, your attempted reservation to such class at such Facility will be cancelled. If we cannot charge your Payment Method, we reserve the right, but are not obligated, to terminate your access to our Site or any portion thereof.
e) Gifts and Promotions. From time to time we may make available gift cards for VaryActive offerings, other types of promotions or promotional plans (including through the use of promotional codes or those provided as part of a third party promotion). Gift cards, promotions and promotional plans may be redeemed as described in the specifics of the promotion and may be subject to additional or different terms. Unless otherwise expressly communicated to you in connection with your redemption, gift cards, promotions and promotional plans are only available to new customers that have never had a VaryActive account before, are not transferable, can only be used once, cannot be redeemed for cash, and may not be combined with other offers and are void where prohibited.
4. OTHER FEES
a) VaryActive Fees. Your VaryActive class reservation fee covers your access to such specific Available Classes as explained above. In addition to your class reservation fee, you are responsible for paying cancellation fees or missed class fees if you do not cancel your class with appropriate notice or do not attend your scheduled class. See section 3.b of this document for our current cancellation and missed class rules including the fees for late cancellations and missed classes. We reserve the right to change the policy regarding when we charge fees, to introduce additional fees and to change the amount of any such fees at any time. Additionally, from time to time we may allow you to purchase additional classes, products or services through the VaryActive Site. If you choose to purchase any of these offerings, you will be responsible to pay the applicable fees in addition to your class reservation fee.
b) Fees Charged by Facilities. In addition to fees we charge, some of the Facilities may also charge equipment or other amenity fees that you will be responsible for directly. For example, some Facilities might charge extra to rent a yoga mat or cycling shoes. Further, VaryActive only gives you access to the class for which you signed up and paid the reservation fee. The Facility may have additional fees for use of additional classes or spaces.
c) Third Party Fees for Using VaryActive. You are also responsible for all third party charges and fees associated with connecting and using the Site, including fees such as internet service provider fees, telephone and computer equipment charges, sales tax and any other fees necessary to access the Site.
5. TERMINATION OR MODIFICATION
a) Termination or Modification. You understand and agree that, at any time and without prior notice, VaryActive may (1) terminate, cancel, deactivate and/or suspend your profile, your account, any orders placed, or your access to or use of the Site (or any portion thereof) and/or (2) discontinue, modify or alter any aspect, feature or policy of the Site or your account. This includes the right to terminate or modify any account at any time. Upon any termination, we may immediately deactivate your account and all related information and/or bar any further access to your account information and the Site. Upon any such termination by us without cause, as your sole recourse, we will not charge your Payment Method for any pending classes. If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of the Site, you will not be entitled to any refund and you agree that we will not be responsible to pay any such refund. You agree that VaryActive will not be liable to you or any third party for any termination or modification to the service regardless of the reason for such termination or modification. You acknowledge that your only rights with respect to any dissatisfaction with any modification or discontinuation of service made by us is to delete your account or cancel or terminate your class reservation at least twenty-four (24) hours before the class start time.
b) Infringing or Fraudulent Activity. VaryActive does not permit copyright infringing activities and reserves the right to terminate access to the Site and remove all content submitted by any persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies VaryActive may have at law or in equity.
6. ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD; SITE ACCESS
a) Eligibility Criteria. The availability of all or part of our Site may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from signing up to or using VaryActive or may terminate your account at any time based on these criteria. For example, you must be 18 years of age or older to use this Site or to reserve an Available Class using VaryActive.
THESE TERMS ARE ONLY APPLICABLE TO USERS IN THE U.S. AND SEPARATE TERMS APPLY TO USERS IN OTHER JURISDICTIONS. THE SITE IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY VARYACTIVE. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A RESIDENT OF THE UNITED STATES WHO HAS NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE. THOSE WHO CHOOSE TO ACCESS THE SITE DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL RULES INCLUDING, WITHOUT LIMITATION, RULES ABOUT THE INTERNET, DATA, EMAIL OR OTHER ELECTRONIC MESSAGES, OR PRIVACY.
b) User Organizations. If you are using or opening an account on behalf of a company, entity, or organization (a “User Organization”), then you represent and warrant that you are an authorized representative of that User Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such User Organization.
c) Account Information. You agree that the information you provide to VaryActive at registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register with VaryActive, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account.
8. PROHIBITED CONDUCT
You shall not:
- Share VaryActive-issued passwords with any third party or encourage any other user to do so;
- Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the copyright or other proprietary rights;
- Harass, threaten, or defraud users, users or staff of VaryActive or Facilities;
- Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users;
- Impersonate another person or access another user’s account without that person’s permission;
- Permit third parties to use any classes booked under your own membership, including other users;
- Cancel any VaryActive class directly with a Facility, rather than through the VaryActive Site,
- Upload material (e.g. virus) that is damaging to computer systems or data of VaryActive or users of the Site;
- Upload or send to Site users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content; or
- Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others.
9. PROHIBITED USES
As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner that, in our sole discretion, could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site, or any part of the Site, other accounts, computer systems or networks connected to the Site, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site. You agree neither to modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site. The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission by VaryActive or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
VaryActive reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in VaryActive’s sole discretion.
10. USER SUBMISSIONS
a) General. The Site provides certain features which enable you and other users to submit, post, and share content with other users, which may include without limitation, text, graphic and pictorial works, or any other content submitted by you and other users through the Site (“User Submissions”). User Submissions are displayed for informational purposes only and are not controlled by VaryActive. VaryActive cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you upload to the Site. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not VaryActive, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit, or otherwise make available through the Site.
b) Right to Remove or Edit User Submissions. VaryActive makes no representations that it will publish or make available on the Site any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Site, or to edit or remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, VaryActive will remove User Submissions upon receipt of a compliant Digital Millennium Copyright Act takedown notice.
c) License Grant by You to VaryActive. You retain all your ownership rights in original aspects of your User Submissions. By submitting User Submissions to VaryActive, you hereby grant VaryActive and its affiliates, sublicensees, partners, designees, and assignees of the Site (collectively, the “VaryActive Licensees”) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publicly display, publish, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Site and VaryActive’s (and its successors’) business, including, without limitation, for marketing, promoting, and redistributing part or all of the Site (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed.
d) User Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize VaryActive to use all patent, trademark, copyright, or other proprietary rights in and to your User Submissions to enable inclusion and use of your User Submissions in the manner contemplated by VaryActive and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, VaryActive’s or any VaryActive Licensee’s use of such User Submissions pursuant to these Terms, and VaryActive’s or any of VaryActive Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) cause injury to any other person; (c) violate these Terms or any applicable law or regulation; or (d) require obtaining a license from or paying fees or royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any copyright owners, including any royalties to any agency, collection society, or other entity that administers such rights on behalf of others. VaryActive may, but is not obligated to, monitor and edit or remove any activity or content, including but not limited to content that VaryActive determines in its sole discretion to be violative of the standards of this Site or these Terms. VaryActive takes no responsibility and assumes no liability for any User Submissions.
e) Inaccurate or Offensive User Submissions. You understand that when using the Site, you may be exposed to User Submissions from a variety of sources and that VaryActive does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST VARYACTIVE WITH RESPECT THERETO.
f) Feedback. If you provide VaryActive with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Site (“Feedback”), VaryActive shall have the right to use such Feedback at its sole discretion, including, but not limited to the incorporation of such suggested changes into the Site. You hereby grant VaryActive a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
11. OWNERSHIP; PROPRIETARY RIGHTS
The VaryActive website and mobile applications are owned and operated by VaryActive. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Site provided by VaryActive (“Materials”) are protected by the copyright, trade dress, and trademark laws of the Unites States, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content uploaded by you, all Materials contained on the Site are the copyrighted property of VaryActive or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to VaryActive or its affiliates and/or third-party licensors. Except as expressly authorized by VaryActive, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
12. THIRD-PARTY SITES; PRODUCTS AND SERVICES; LINKS
The Site may include links or access to other web sites or services (“Linked Sites”) solely as a convenience to users. VaryActive does not endorse any such Linked Sites or the information, material, products, or services contained on other linked sites or accessible through other Linked Sites. Furthermore, VaryActive makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between you and such advertiser. VARYACTIVE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
Except as explicitly stated otherwise, legal notices will be served, with respect to VaryActive, on VaryActive’s registered agent, and, with respect to you, to the email address you provide to VaryActive during the registration process. Notice will be deemed given 24 hours after the email notice is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process, if any. In such case, notice will be deemed given three (3) days after the postmarked date.
14. DISCLAIMERS; NO WARRANTIES
CLASSES, ACTIVITIES, AND OTHER NON-VARYACTIVE PRODUCTS AND SERVICES OFFERED VIA THE SITE ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT VARYACTIVE. YOUR ATTENDANCE AT AND PARTICIPATION IN THESE CLASSES, ACTIVITIES, AND YOUR USE OF THESE NON-VARYACTIVE PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL VARYACTIVE BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A CLASS, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE SITE, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. VARYACTIVE IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.
THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VARYACTIVE, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WITHOUT LIMITING THE FOREGOING, VARYACTIVE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SITE IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. WAIVER AND RELEASE
You understand that VaryActive is not a gym or fitness studio or other service provider and the classes you take or services you use are operated and delivered by the applicable Facility and not by VaryActive. Although VaryActive endeavors to offer inventory that is of high quality, VaryActive is not responsible for the quality of any class or service. You understand that there are certain inherent risks and dangers in exercising and that the classes you may attend offer a range of activity and intensity level. By signing up for a VaryActive membership, you acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or assigns that you are aware of these risks that include, but are not limited to, property damage, illness and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You acknowledge and agree that it is your responsibility to consult with your primary care physician prior to participating and to determine if and how participating in any class or service is appropriate for you. You also understand and agree that the Site offers health and fitness information that is designed for educational and entertainment purposes only and the use of any of the information provided on the Site is solely at your own risk.
Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless VaryActive, its parent, subsidiaries or affiliated entities, and each of their respective officers, directors, users, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses, damages and liabilities arising out of or in any way related to your participation in or use of your VaryActive membership, including with respect to bodily injury, physical harm, illness, death or property damage.
YOU HEREBY WAIVE ANY AND ALL FEDERAL OR STATE STATUTES THAT LIMIT THE ENFORCEABILITY OR APPLICABILITY OF THIS WAIVER IN ANY MANNER. This waiver extends to and includes any and all claims, liabilities, injuries, damages, and causes of action that the parties do not presently anticipate, know, or suspect to exist, but that may develop, accrue, or be discovered in the future.
16. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify and hold VaryActive, its affiliated companies, and its suppliers and partners harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your misuse of the Site, violation of any applicable laws or these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.
17. LIMITATION OF LIABILITY AND DAMAGES
UNDER NO CIRCUMSTANCES WILL VARYACTIVE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF VARYACTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, VARYACTIVE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
VARYACTIVE’S LIABILITY TO YOU IS LIMITED TO $50 OR THE AMOUNTS, IF ANY, PAID BY YOU TO VARYACTIVE UNDER THIS AGREEMENT IN THE NINETY DAYS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER VARYACTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. FACILITY WAIVERS AND TERMS
Users taking classes or attending a gym are deemed to agree to the liability waivers of the Facilities. Your participation in any class or service may be subject to addition policies, rules or conditions of the applicable Facility and you understand and agree that you may not be permitted to reserve or attend classes at a particular Facility if you do not comply with these Terms or the policies of such Facility. If you have questions about a Facility’s waiver or other terms, please see the applicable Facility’s website or contact the Facility directly.
19. INFRINGEMENT POLICY
Please see our Digital Millennium Copyright Act document for an explanation of our copyright and trademark policies.
20. disputes; remedies
a) Mediation Agreement. This contract shall be governed by and construed in accordance with the laws of the state of Texas, and exclusive venue shall be in Harris County, Texas. Prior to the initiation of any litigation the parties agree that any dispute will be submitted for mediation in Houston, Texas with a mediator agreed upon by both parties from the Houston mediator roster of the American Arbitration Association (“AAA”). If, after thirty days written notice from either party to the other that mediation is requested on a dispute, the parties cannot agree on the selection of a mediator, then the parties hereby agree to allow AAA to choose such mediator based on the parties’ list of no less than five (5) mediators. Each party shall pay one-half of the mediator’s fee, and the mediation shall take place on the date selected by the mediator and shall be conducted under the AAA Rules & Procedures then in use.
b) Your Right to Opt Out of Mediation. Notwithstanding the above, you may choose to pursue a Dispute in court and not by mediation if (a) the Dispute qualifies, it may be initiated in small claims court in your state of residence; or (b) YOU OPT-OUT OF THESE MEDIATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of mediation by mailing written notification to VaryActive, Legal Department, 17515 Spring Cyrpess Road, Houston , TX 77429. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with VaryActive through arbitration. Your decision to opt-out of mediation will have no adverse effect on your relationship with VaryActive. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in mediation or small claims court.
c) Pre-Suit Dispute Resolution. For all Disputes, whether pursued in court, mediation, or arbitration, you must first give VaryActive an opportunity to resolve the Dispute. You must commence this process by mailing written notification to VaryActive, Legal Department, 17515 Spring Cyrpess Road, Houston , TX 77429. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If VaryActive does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
d) Class Action Waiver. Except as otherwise provided in these Terms, an arbitrator or mediator, if used, may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and VaryActive specifically agree to do so following initiation of the arbitration or mediation. If you choose to pursue your Dispute in court, this Class Action Waiver will not apply to you. Neither you, nor any other User of VaryActive and/or user of VaryActive services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above.
e) Limitation of Procedural Rights. You understand and agree that, by entering into this Mediation Agreement, you and VaryActive are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Mediation Agreement, you and VaryActive might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, you give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
f) Severability. If any clause within this Mediation Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from Terms, and the remainder of these Terms will be given full force and effect.
g) Continuation. This Mediation Agreement shall survive the termination of your contract with VaryActive and your use of the VaryActive Site and services.
a) Jurisdiction. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to conflict of law provisions. You agree that any claim or dispute you may have against VaryActive must be resolved by a court located in Harris County, Texas, except as otherwise agreed by the parties or as described in the Mediation Agreement section above. You agree to submit to the personal jurisdiction of the courts located within Harris County, Texas for the purpose of litigating all such claims or disputes.
b) Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
c) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
d) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
e) Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and VaryActive relating to the subject matter herein.
f) Claims; Statute of Limitations. YOU AND VARYACTIVE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) Disclosures. The services hereunder are offered by Kyrohs Ventures, Inc., located at: 17515 Spring Cyrpess Road, Houston , TX 77429 and email: info@VaryActive.com.
h) Waiver. No waiver of any of these Terms by VaryActive is binding unless authorized in writing by an executive officer of VaryActive. In the event that VaryActive waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of VaryActive to enforce the same at a later time.
Kyrohs Ventures, Inc.
FACILITY TERMS & CONDITIONS
PLEASE READ THE ENTIRE FACILITY TERMS & CONDITIONS (THE “AGREEMENT”). YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND KYROHS VENTURES INC.; OWNER AND OPERATOR OF VARYACTIVE (www.varyactive.com)) (“VARYACTIVE”). BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1.1 This Agreement contains the complete terms and conditions that apply to you becoming a “Facility” in VaryActive’s Facility Program (the “Program”). The purpose of this Agreement is to allow VaryActive to advertise and sell your Facility’s available fitness class seats to VaryActive’s users via its mobile application ( the “App”), as well as provide links to your website and/or contact information and/or contact page. Please note that throughout this Agreement, “we,” “us,” and “our” refer to VaryActive, and “you,” “your,” and “yours” refer to the Facility.
1.2 VaryActive will collect from the User the full price for the fitness class seat (the “Class Price”) as posted by the Facility through the VaryActive Club Portal (the “Site”). The Class Price consists of two parts; taxes and fees and class revenue. Class revenue consists of two parts; VaryActive revenue and Facility revenue. At the end of each month VaryActive will remit to the Facility the sum of Facility revenue collected for that month subject to net 30 terms. Along with the payment to the Facility VaryActive will submit a register for each seat booked through VaryActive to allow the Facility to verify the remitted payment. The financial arrangement between VaryActive and Facility is attached hereto as the Partner Facility Agreement.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the Partner Facility Agreement. After submitting the Partner Facility Agreement you must complete the online application form at the Site. The application may be evaluated at the time of submittal or at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your Facility is unsuitable for our Program, including if your physical facility or website or any online material:
2.1.1. Promotes sexually explicit materials;
2.1.2. Promotes violence;
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
2.1.4. Promotes illegal activities;
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
2.1.6. Includes “VaryActive” or variations or misspellings thereof in its domain name;
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion;
2.1.8. Contains software downloads that potentially enable diversions of from other facilities in the Program.
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our Site nor design your website in a manner which leads customers to believe you are VaryActive or any other affiliated business.
2.2. As a facility in VaryActive’s Facility Program, you may also have access to “MINDBODY Connect” and/or other scheduling software. VaryActive may offer easy integration with such fitness center management software, but is not required to do so. You are encouraged to use VaryActive’s portal, which allows fitness facilities to input available inventory (open seats in classes) and prices for such inventory. VaryActive is not responsible for any loss that results from the use of any third party software. Additionally, you agree that any delay caused by VaryActive’s software or Site shall not be the cause of any damages, as the demand for such inventory on the Site fluctuates and is not predictable.
2.3. The maintenance and the updating of your Site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.4. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
3. VaryActive Rights and Obligations
3.1. We have the right to monitor your site and visit your physical facility at any time to determine if you are following the terms and conditions of this Agreement.
3.2. VaryActive reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you, with our without cause. If any fraud or abuse is detected, VaryActive shall not be liable to you in any manner whatsoever and you hereby indemnify VaryActive as described under Section 13 herein.
3.3. This Agreement will begin upon our acceptance of your application, and will continue unless terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail or email, as described below in Section 15.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and VaryActive’s Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the Program following the posting of the change notice or new Agreement on our Site will indicate your consent to the changes.
VaryActive uses a third party to process all payments. You agree that VaryActive shall not be liable for any loss due to action, inaction, errors, or omissions by such third party payment processor.
7. Promotion Restrictions
7.1. You are free to promote your own facility and business, but naturally any promotion that mentions VaryActive could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising must be approved by VaryActive’s written consent. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Also, you may post to newsgroups to promote VaryActive so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from VaryActive. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2. Facilities that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as varyactive.com, VaryActive, www.varyactive, www.varyactive.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to VaryActive’s Site, will be considered trademark violators, and will be banned from the Program. We will do everything possible to contact the Facility prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8. Grant of Licenses
8.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a Facility in good standing of the Program. You agree that all uses of the Licensed Materials will be on behalf of VaryActive and the good will associated therewith will inure to the sole benefit of VaryActive.
8.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
VARYACTIVE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING VARYACTIVE SERVICES AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF VARYACTIVE ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
10. Representations and Warranties
You represent and warrant that:
10.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
10.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
10.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
11. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL VARYACTIVE’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL VARYACTIVE REVENUE OBTAINED THROUGH THE SALE OF FACILITY SEATS UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless VaryActive, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the trademark(s) infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) any claim that may ever be asserted against VaryActive, in any way, directly or indirectly, constituting, relating to, resulting from or arising out of your breach of this Agreement
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
14. BREACH OF THIS AGREEMENT
14.1 Events: An event of default exists if any of the following occurs and is continuing beyond any period of time provided for cure:
14.1.1 Payments. A party fails to pay any sum when due under this Agreement.
14.1.2 Unauthorized disclosure. A Party has disclosed Confidential information other than as permitted herein.
14.1.3 Breach of Agreement. A Party breaches or fails to comply in any material respect with any provision of this Agreement.
14.2 Remedies: Upon the occurrence of an event of default, the Party claiming injury may exercise any right, power, or remedy permitted to it by law or at equity, including the remedy of specific performance. The Party claiming injury shall give written notice specifying the claimed particulars of such default or breach. If such default is not remedied within forty-eight (48) hours after submission of such notice, the Party may: (i) assess interest of eight percent (8%) per annum until paid in full; and (ii) enforce the defaulted obligation by any available lawful means. The prevailing Party in any action to enforce this Agreement, or any part hereof, shall be entitled to all reasonable costs and expenses of such action, including attorney’s fees. Any indulgence shall not be construed as a waiver of rights under this paragraph either with respect to such default or to similar subsequent defaults.
14.3 Injunctions. Each party admits and agrees that the other Party would be irreparably damaged if any provision of this Agreement is not fulfilled strictly in accordance with its terms and, accordingly, such Party shall be entitled to a restraint, injunction or injunctions to prevent any material breach of this Agreement. Each Party shall indemnify and save harmless the other from and against any and all losses, costs, expenses, damages, and claims as a result of its breach of this Agreement. The remedies in this Section shall be in addition to, and not in limitation of, any other remedy available at law or in equity. The rights and remedies provided by this Agreement are cumulative and the use of one right or remedy by any Party shall not preclude or waive its right to use any or all other remedies.
15. Additional Terms
15.1 Notices. All notices pursuant to this Agreement to either Party shall be in writing and shall be personally delivered or mailed by U.S. mail; postage prepaid, or transmitted electronically, fees prepaid. Notice shall be deemed given and effective on receipt by the Party to whom such notice is directed.
17515 Spring Cypress Rd Ste. C#220
Cypress, TX, 77429
Attn: VaryActive Legal Dept.
Information provided in Partner Facility Agreement.
15.2 Headings. The titles and articles or paragraph headings of this Agreement are only inserted for convenience, are in no way to be construed as a part of this Agreement and do not in any way limit, amplify or otherwise affect the warranties, representations and covenants contained in this Agreement.
15.3 Governing Law. THIS AGREEMENT, AND THE APPLICATION OR INTERPRETATION THEREOF, SHALL BE GOVERNED EXCLUSIVELY BY ITS TERMS AND BY THE LOCAL, INTERNAL LAW OF THE STATE OF TEXAS, U.S.A., EXCEPT TO THE EXTENT THE CONFLICTS OF LAWS RULES OF THE STATE OF TEXAS WOULD REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION IN WHICH CASE THE LAWS OF THE STATE OF TEXAS SHALL NONETHELESS APPLY. THE PARTIES CONSENT TO JURISDICTION IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF HARRIS, STATE OF TEXAS, U.S.A.
15.4 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which shall constitute one and the same agreement.
15.5 Invalidity of Particular Provisions. If any provision of this Agreement or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable, then the remainder of this Agreement shall be null and void, it being the intent of the Parties hereto that the covenants and considerations herein set forth be conditioned one upon the other and that no provision of this Agreement is segregable.
15.6 Binding Effect of Agreement. This Agreement and the covenants, warranties and obligations contained herein shall be binding upon the Parties hereto and upon their respective legal representatives, successors and assigns.
15.7 No Inducements. This Agreement represents the entire agreement between the parties with regard to the consideration and compensation for all matters covered by this Agreement. There has been no, and does not now exist any offer, payment, promise to pay, gift, promise to give, or authorization of the giving of anything of value to any officer, director, stockholder employee or agent of any party to this Agreement, or to the Parties to this Agreement other than as set out herein.
15.8 Entire Agreement. This Agreement supersedes any previous agreements between the parties regarding the subject matter of this Agreement and no prior stipulation or agreements, verbal or written, by the parties shall be valid or enforceable unless embodied in the provisions of this Agreement. This Agreement contains the entire understanding of the Parties hereto and no modification shall be effective unless evidenced by a subsequent written agreement executed by the Parties hereto.