Terms & Conditions of Use
Effective Date: February 6, 2018
Cross Fitness, LLC (“Cross Fitness”) and its Affiliates (collectively, “we,” “us,” or “our”) operate the website at www.TheCrossDifference.com (together with any other website on which these Terms & Conditions are posted, the “Website”) and the Mom Bod Squad program (the “Program”) and personal training services (the “Service”). The Service and Program may be referred to collectively as the “Service”.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR SERVICE CAREFULLY. These Terms & Conditions of Use (“Terms & Conditions”) set forth the terms and conditions under which you may access and use the Service. By using our Service, you agree to be legally bound to these Terms & Conditions.
We reserve the right, in our sole discretion, to change or modify these Terms & Conditions at any time without notice to you. You should check these Terms & Conditions periodically for changes. If Cross Fitness modifies or changes these Terms & Conditions, it will also revise the “Effective Date” at the top of this page. The most current version of these Terms & Conditions can be reviewed by clicking on the “Terms & Conditions” link located on the Service.
Your continued use of the Service after we post any changes to these Terms & Conditions constitutes your acceptance of those changes. If you do not agree to these Terms & Conditions, you should not use our service and, if applicable, you should cancel any purchases made.
PLEASE NOTE THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS & CONDITIONS OR ON THE SERVICE TO THE CONTRARY, THE SERVICE IS PROVIDED WITHOUT ANY WARRANTIES AND SUBJECT TO LIMITATIONS ON CROSS FITNESS’S LIABILITY. THESE TERMS ARE CONTAINED IN SECTIONS 19 AND 20 BELOW.
1. Limitations on these Terms and Conditions. Any limitations of these terms and conditions are applied only as broad and inclusive as is permitted by law in the state of Minnesota, or any other state that restricts disclaimers, limitations of liability and/or remedies, and similar provisions.
2. Use of the Service. Conditioned upon and subject to these Terms & Conditions, and your compliance therewith, we grant you a non-exclusive, non-transferable, limited right to (a) access and use those portions of the Service, Content and User Content that we make available to you, and (b) print a reasonable number of copies of the Content and User Content, all for your personal, noncommercial use.
3.1. You agree not to access or use the Service for any purpose that is not expressly permitted by these Terms & Conditions, and agree to comply with all applicable laws, statutes, ordinances, regulations, contracts and licenses regarding your use of the Service.
3.2. You agree not to, without first obtaining Cross Fitness’s express written permission, (a) use any of its trademarks as metatags on other web sites; (b) use the Service in any manner that is illegal or impairs the operation of the Service or its availability or usage by others; and/or (c) display any part of the Service in frames (or any Content or User Content via in-line links). You further agree not to (x) decompile, reverse engineer or disassemble any software or other products or processes accessible through the Service, (y) insert any code or product or manipulate the Service in any way that affects the user’s experience including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load on the Service, or (z) use any data mining, web crawlers, robots, cancelbots, spiders, Trojan horses, or any data gathering or extraction method in connection with your use of the Service except for customary search engines used in accordance with automated instructions directed to search engines and available on the Service.
3.3. Except as expressly permitted in these Terms & Conditions, none of the Content or User Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Cross Fitness or the respective copyright owner. Without limiting the generality of the foregoing, you may not, without the express written permission of Cross Fitness or the respective copyright owner, (a) copy, publish, or post any Content or User Content on any computer network or broadcast or publications media; (b) remove or alter any copyright or other proprietary notices contained in the materials, (c) sell, resell, or make commercial use of the Service, Content, User Content or services or products obtained through the Service; or (d) collect and use any product listings or descriptions.
4. Modifications to the Service. We may discontinue, suspend, modify, restrict and/or alter any aspect of the Service (or any portion thereof), including, but not limited to, (a) restricting the time the Service is available, (b) restricting the amount of use permitted, and (c) restricting or terminating any user’s right to use the Service.
5. Additional Terms & Conditions. From time to time, we may supplement these Terms & Conditions with additional terms and conditions pertaining to specific content, activities, features and/or events (“Additional Terms”). Such Additional Terms may be placed on the Service to be viewed in connection with the specific content, activities, features or events. You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms & Conditions, and that you shall not use such content or features or participate in any such activities and/or events if you do not agree to the Additional Terms.
6. Intellectual Property
6.1. General. Except for content that is in the public domain and User Content, the Service and all content on the Service, as well as the selection and arrangement of the content, (collectively, the “Content”) is owned by (or licensed to) Cross Fitness or its suppliers and is protected by copyright, trade dress, trademark, unfair competition and/or other laws and may not be used, copied or imitated in whole or in part except as expressly provided herein. Except as otherwise expressly provided in these Terms & Conditions, all IP Rights in and to the Service and Content are expressly reserved by Cross Fitness.
6.2. Trademarks. Cross Fitness, The Cross Difference, and the related logos are trademarks of Cross Fitness, and may not be copied, imitated or used, in whole or in part, without Cross Fitness’s prior written permission. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of Cross Fitness or its licensors and may not be copied, imitated, or used, in whole or in part, without Cross Fitness’s prior written permission.
6.3. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional IP Rights in the Content.
7. Copyright Complaints
7.1. We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our discretion, terminate your ability to use and access the Service (including your User Account) if we believe that you are infringing the IP Rights of others or are aiding or threatening such infringement.
7.2. If you believe that your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify our us as provided in this section. Please email train@TheCrossDifference.com.
8. Becoming a Registered User
8.1. If you elect to register with our Service, you will be considered a “Registered User” and will have a “User Account” for the Service. You agree to provide us with true, accurate, current and complete information about yourself, and to maintain and promptly update the such information (and other information you provide to us) to keep it accurate.
8.2. Portions of the Service available to different Registered Users may vary, as certain portions and features of the Service require a paid subscription (a “Subscription”).
8.3. No Registered User has access to all portions of the Service. You agree not to use or access, or attempt to use or access, any portion of the Service for which you are not intentionally given access to by us.
8.4. You do not have to become a Registered User or purchase a Subscription to use certain portions of the Service. However, if you do not register with the Service and do not purchase a Subscription, you may be precluded from using certain products, offerings, features, or resources of our Service that are provided only to Registered Users (e.g., any Community Area and the “Public Profile” feature of our Service) and/or those Registered Users who have purchased a Subscription.
8.5. You agree not to assign, transfer or sublicense your rights as a Registered User. You further agree not to register for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the Service.
9. Fees and Payment. For any Subscription, you shall pay to Cross Fitness or its payment processor any fees due in accordance with the fee schedule posted on the Service, as updated from time-to-time, and all applicable taxes.
10. Free Trials and Paid Subscriptions for the Service
10.1 Cross Fitness may, from time to time, offer a free trial to use the subscription-based features of the Service (a “Free Trial”). The length of the Free Trial will be specified at the time that you sign up for such Free Trial. At the end of the Free Trial, you will be deemed to have purchased a Subscription and will be charged the applicable fees for such Subscription, unless you cancel your Subscription before the end of the Free Trial via the Service.
10.2 Your Subscription will begin on the day after the last day of the Free Trial. If, during the Free Trial, you decide that you do not want to purchase a Subscription, you must cancel the Subscription during the Free Trial.
10.3 The term of your Subscription shall begin on the date you purchase the Subscription via the Service (or, if applicable, on the day after the last day of your Free Trial, as set forth in Section 10.1 above) and shall continue for one (1) month (the “Subscription Period”); subject, however, to renewal and earlier termination as provided herein. Upon the expiration of the Subscription Period and each Renewal Period, if any, the term of the Subscription shall automatically renew for successive periods of one (1) month each (each such one month period is a “Renewal Period”) unless (a) either party gives the other party notices of its intention not to have the Subscription renew, or (b) we agree otherwise in writing. You may notify Cross Fitness of your intention not to renew the Subscription by cancelling the Subscription via the Website or other means available through the Website. Subject to the further provisions of these Terms & Conditions, any such termination by you shall be effective at the end of the then-current Subscription Period or Renewal Period, as applicable.
10.4 Cross Fitness may, from time to time, offer Subscriptions that are for a set period of time that do not automatically renew (e.g., a one year Subscription that does not automatically renew). Any such Subscription shall continue for the period of time specified at the time of purchase, subject to earlier termination as provided herein.
11.1 Cross Fitness may, in its sole discretion, terminate or suspend your access to, and/or use of, the Service, or any portion thereof, at any time, with or without notice and for any reason (or no reason) including, without limitation, if it believes that you are infringing, or have infringed, the IP Rights of others or are aiding or threatening, or have aided or threatened, such infringement. Any such termination shall be effective on the date specified in such notice or, if no date is provided, shall be effective immediately. You agree that if your authorization to access or use the Service is terminated, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly, and if your authorization to enter the Service is suspended, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly, until your suspension is removed and Cross Fitness gives you express notice thereof.
11.2. You agree that we shall not be liable to you or any third-party for any termination or suspension of your access to or ability to use the Services.
11.3. Upon termination of your authorization to access and/or use the Service, (a) you lose access to the Service, and (b) Cross Fitness may, in its sole discretion, delete all information and content in your User Account (including without limitation User Content). Notwithstanding the foregoing, Cross Fitness reserves the right to retain and use such information and content as necessary to comply with its legal obligations, resolve disputes and enforce the Terms & Conditions.
13. Community Standards and Conduct Guidelines
13.1. You acknowledge that all content posted, uploaded, emailed, or otherwise transmitted to or on the Service by users of the Service, whether publicly posted or privately transmitted, (collectively, the “User Content”) is the sole responsibility of the person who posted, emailed or transmitted such User Content. This means that you are entirely responsible for all User Content that you post, upload, email or otherwise transmit to or on the Service.
13.2. We do not control the User Content on the Service and, as such, we do not guarantee the accuracy, integrity or quality of such User Content, and will not be liable in any way for any User Content, or use or misuse of User Content (including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content).
13.3. Although we have adopted community standards and conduct guidelines for users of the Service (as described below), you understand that by using the Service, you may be exposed to User Content that is offensive or objectionable.
13.4. You agree not to use the Service (including any Community Areas) to:
a. Upload, post, email or otherwise transmit any User Content or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, indecent, or racially, ethnically or otherwise objectionable (in our sole discretion); or that contain false, fraudulent, deceptive or misleading statements;
b. Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
c. Impersonate any other person or entity, including, but not limited to any user of the Service, a director, officer, employee, shareholder, agent or representative of Cross Fitness, our Affiliates or any other person or entity, or falsely state or otherwise misrepresent your affiliation with Cross Fitness, or our Affiliates or any other person or entity;
d. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content or other materials transmitted to or through the Service;
e. Upload, post, email or otherwise transmit any User Content or other materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
f. Upload, post, email or otherwise transmit any User Content or other materials that infringe upon or otherwise violate any IP Rights of any party;
g. Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial solicitation;
h. Upload, post, email or otherwise transmit any User Content or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
i. Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of a Community Area (or other portion of the Service) are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of the Service;
j. Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
k. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
l. “Stalk”, “Cyberstalk” or otherwise harass any person; or
m. Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Service (including user names or passwords) or access or attempt to access another user’s account without his or her consent;
13.5. Your right to use the Service and contribute to discussions on the Community Areas depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your right to use all or a portion of the Service and/or take any other appropriate measures to enforce these Terms & Conditions if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, we may terminate, in our sole discretion, your use of, or participation in, any Community Area.
13.6. Except as may otherwise be provided on the Service, all Community Area communications (including, but not limited to, chat, message board, blog, group, and profile communications) are public communications and are not private.
13.7. We reserve the right to monitor some, all, or no areas of the Service (including any Community Area) for adherence to the community standards and conduct guidelines set forth above or for any other purpose, and to remove, refuse or disable (without notice) any User Content for any reason, but have no obligation to screen User Content.
13.8. We are not responsible for maintaining a copy of any User Content we remove from the Service, and we are not liable for any loss you incur in the event that your User Content has been removed and/or deleted.
13.9. We will cooperate with law enforcement or a court order requesting or directing us to disclose the identity of you or anyone else posting, uploading, transmitting or emailing any User Content prohibited by these Terms & Conditions. We may also disclose such information if such disclosure is reasonably necessary to protect the rights, property, or personal safety of Cross Fitness, its Affiliates, or others.
14.1. If, at our request or on your own, you send, email, post or otherwise transmit to the Service or to us (including, without limitation, via email or social media) any content (“Your Submissions”), you shall be deemed to grant us and our successors and assigns a royalty-free, perpetual, irrevocable, non-exclusive right (including waiver of any moral rights) and fully transferable, assignable and sub-licensable license (as well as consent) (a) to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform and display Your Submissions (in whole or in part and with or without the use of your name, social media handle, age and/or other information that you provide) worldwide and/or (b) to incorporate such Your Submissions in other works in any form, media, or technology now known or later developed, including, without limitation, use of Your Submissions both online and in advertising. By providing Your Submissions, you shall also be deemed to grant to other users of the Service the right to access and use Your Submissions as such users are permitted to access, use and copy User Content under these Terms & Conditions.
14.2. You shall not provide Your Submissions unless you own all IP Rights therein.
14.3. You represent and warrant to Cross Fitness that you have the right to upload or otherwise submit Your Submissions to us and to grant Cross Fitness the licenses granted in this section, and that Your Submissions do not infringe, misappropriate or otherwise violate a privacy right or IP Right of another.
14.4. You further acknowledge that we and our successors and assigns shall be entitled to unrestricted use of Your Submissions for any purpose whatsoever, commercial or otherwise, without compensation to you or any third party.
14.5. Subject to the foregoing, the owner of IP Rights in any User Content uploaded, submitted, emailed or otherwise transmitted to the Service retains any and all of his/her IP Rights in such User Content. No User Content shall be subject to any obligation of confidence on our part, and we shall not be liable for any use or disclosure of any User Content.
14.6. Cross Fitness may alter, adapt, or edit Your Submissions, and market and exploit Your Submissions entirely at Cross Fitness’s sole discretion. Notwithstanding the foregoing, Cross Fitness is not obliged to make any use of Your Submissions or exercise any of the rights granted by these Terms & Conditions.
15. Parental or Guardian Permission. Some of the Content on the Service may not be appropriate for children. CHILDREN UNDER THE AGE OF 13 ARE NOT PERMITTED TO USE THIS WEBSITE. We strongly recommend that children between the ages of 13 and 18 ask for their parent’s or guardian’s permission before using the Service.
16.1. These Terms & Conditions do not apply to the websites of any other person or entity.
16.2. We may provide, or third parties may provide, links to other websites or resources operated by parties other than Cross Fitness. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, do not have control over such sites or resources or their privacy policies, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or resources.
16.3. You further acknowledge and agree that under no circumstances will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources).
16.4. You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
17. Third Party Products and Services. The Service may allow you to order services, merchandise or other products from other parties (collectively, the “Third Party Sellers”). All matters concerning the services, merchandise and other products desired from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
18. Password and User Security. If you are a Registered User, you may not authorize any other person to enter and/or use your User Account. You are responsible for any and all activities which occur under your User Account, and for maintaining the confidentiality of your password and User Account information. You agree to notify us immediately in the event of any known or suspected unauthorized use of your User Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password.
19. Health Disclaimer
19.1. The Service provides exercise and weight management related information and content and is intended only for your general knowledge and to assist users in their personal health and wellness efforts. Cross Fitness is not a medical organization and our staff does not and cannot give you medical advice or diagnosis; thus, the Service is not a substitute for medical advice or treatment for specific medical conditions. Nothing contained on the Service should be construed as such advice or diagnosis.
19.2. The Content has not been evaluated by any third party, is not exhaustive, does not cover all diseases, ailments, physical conditions or their treatment, and is not intended to treat, diagnose, cure or prevent any disease. The information and reports generated by the Service should not be interpreted as a substitute for consultation, evaluation or treatment with or by a physician.
19.3. We do not recommend the self-management of health problems. You are urged and advised to seek the advice of a physician before beginning any weight loss or exercise program or purchasing any related products, and to determine a safe rate of weight loss for you. If you lose at a greater rate, you should work with your physician to adapt any suggestions provided via the Service to avoid rapid weight loss.
19.4. The Service is intended for use only by healthy adult individuals. The Service is not intended for use by minors, pregnant women, or individuals with any type of health condition. If, notwithstanding the foregoing, a user who is 13- 18 years old wishes to use the Service, he/she should consult with his/her parents and medical professionals before using the Service. You should seek prompt medical care for any specific health issues. If you are being treated for an illness, taking prescription medication, or following a therapeutic diet to treat a disease, it is especially important to consult with a physician regarding any new exercise or weight loss program.
20. Disclaimers of Warranties
20.1. THE SERVICE IS PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT CROSS FITNESS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CROSS FITNESS FURTHER DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND ACCURACY WITH RESPECT TO THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE.
20.2. Neither Cross Fitness nor any of its licensors or service providers makes any representations or warranties relating to the Service including, without limitation, representations or warranties that (a) the Service shall meet your requirements, (b) the operation of the Service will be uninterrupted or error free, (c) the Service will be secure; (d) any defects in the Service will be corrected; (e) the Service or the servers that make the Service available are free of viruses or other harmful components, (f) the results from your use of the Service or the Content or User Content, or (g) the correctness, accuracy and reliability of the Content and User Content.
20.3. ANY CONTENT AND USER CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR USE OF THE SERVICE.
20.4. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THIS WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
20.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
21. Limitation of Liability
21.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT CROSS FITNESS SHALL NOT BE LIABLE FOR (1) PERSONAL INJURY OR PROPERTY DAMAGE, OR (2) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE USE OF ANY CONTENT, USER CONTENT OR OTHER MATERIAL ON THIS SERVICE OR ANY WEBSITE OR WEBSITES LINKED TO THE SERVICE, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICE; OR (F) ANY OTHER MATTER RELATING TO OUR SERVICE.
21.2. In no event shall our total liability to you for all damages, losses and causes of action (whether in contract, tort (including, but not limited to, negligence) exceed the greater of (a) the amount paid by you, if any, for your Subscription for the three (3) month period immediately before the applicable claim arose, or (b) ten dollars ($10).
21.3. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR SERVICE, OR WITH ANY OF THESE TERMS & CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THIS SERVICE. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
22. Indemnification. You agree to indemnify, hold harmless and, at our option, defend Cross Fitness and our Affiliates, and our and their respective officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys fees and expenses) arising from (a) your improper use of the Service, (b) your violation, or alleged violation, of these Terms & Conditions, or (c) your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any other person or entity.
23. Governing Law & Arbitration
23.1. These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of Minnesota, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to the Terms & Conditions or your use of the Service shall be filed only in the Judicial Court of Hennepin County, Minnesota, or the United States District Court for the Fourth Judicial District of Minnesota, and except as stated herein you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action, or proceeding arising out of the Terms & Conditions. You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
23.2. You agree that any cause of action that you may desire to bring arising out of or related to these Terms & Conditions must be filed within one (1) year after the cause of action arises; otherwise, such cause of action shall be permanently barred.
23.3. Notwithstanding the above, in the event that a dispute arises between you and Cross Fitness related to these Terms & Conditions or your use of the Service, each party agrees that the dispute shall be subject to individual and final and binding arbitration, and shall be resolved exclusively by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the “Act”). The Act will apply even though these Terms & Conditions provide that they are governed by the laws of Minnesota. Arbitration proceedings will be determined in accordance with the Act and the Comprehensive Arbitration Rules & Procedures of JAMS, a Delaware limited liability company or any successor thereof (“JAMS”), except that discovery in said arbitration shall be limited in scope to the specifics of liability on the claim, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control. The arbitration shall be administered by JAMS and conducted in Minneapolis, Minnesota. All claims shall be determined by one neutral, retired judge from a JAMS panel; however, if claims exceed Five Million Dollars, upon the request of either Cross Fitness or you, the claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, enter an award on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of these Terms & Conditions. This paragraph does not limit the right of Cross Fitness to: (i) exercise self-help remedies, such as, but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as, but not limited to, injunctive relief, writ of attachment, writ of possession or appointment of a receiver, or additional or supplementary remedies. The prevailing party in any action or arbitration related to these Terms & Conditions shall be entitled to its reasonable attorney fees and costs. Discovery shall be limited to you and us each being allowed to take up to three (3) depositions, serve up to 20 document requests, and serve 20 interrogatories. The appointed arbitrator(s) may increase the number of discovery requests upon a showing of good cause only.
23.4. You agree that (i) the dispute shall be resolved solely on the basis of your individual claim or claims, (ii) you waive the right to make any claim on a class basis or as a class representative, and (iii) you give up the right to participate, and will not participate, as a member of any class in any claim filed against us in court, arbitration, or any other forum. You agree that you are knowingly and voluntarily giving up the right to make any class claim, to be a class representative, and to participate as a member of any class in any claim against us.
23.5. The terms of this paragraph survive any termination of your Subscription.
24. International Users. The Service is controlled, operated, and administered by Cross Fitness from its offices within the United States of America. Cross Fitness makes no representation that materials on the Service are appropriate or available for use at other locations outside of the United States and access to them from territories where the Content or products available through the Service are illegal is prohibited. You may not use the Service or export the Content or products in violation of U.S. export laws and regulations. If you access the Service from a location outside of the United States, you are responsible for compliance with all local laws.
25. Third Party Rights. Only you and Cross Fitness shall be entitled to enforce these Terms & Conditions. No third party shall be entitled to enforce any of these Terms and conditions.
26. Miscellaneous Terms
26.1. If any provision of these Terms & Conditions is declared or found to be illegal, unenforceable or void, then the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remaining sections of these Terms & Conditions shall remain in full force and effect. These Terms & Conditions are the entire agreement between you and us relating to the subject matter herein. Any proposed amendment to the Terms & Conditions shall only become effective upon the execution by both parties of a written amendment that references these Terms & Conditions. The Terms & Conditions may not be supplemented, modified, amended, released, discharged or waived, in whole or in part, except by an instrument in writing signed by each party’s duly authorized representative.
26.2. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees. You may not assign your rights or obligations under these Terms & Conditions.
26.3. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
26.4. No right or remedy conferred by these Terms & Conditions is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
26.5. Cross Fitness may provide notice to you relating to these Terms & Conditions by sending an e-mail to your last known e-mail address, if any, your last known postal address, if any, or posting a notice on the Service, and any such notice shall be deemed given and received on the earlier of the day it is sent to you or the day it is posted on the Service. A printed version of these Terms & Conditions and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms & Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If Cross Fitness brings any suit against you to enforce these Terms & Conditions or otherwise in connection with your use of the Service, you agree that if Cross Fitness prevails in such suit Cross Fitness shall be entitled to recover all costs and expenses incurred in such suit including reasonable attorneys’ fees. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms & Conditions.
27. Additional Definitions. For purposes of these Terms & Conditions, the following terms have the specified meanings:
“Affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, Cross Fitness, including, without limitation, its subsidiaries.
“Community Area” means any blog, personal page, group page, chat room, message board, bulletin board, recipe swap, or similar activity where you can communicate with other users of the Service or post User Content.
“IP Rights” means patent, trademark, trade secret, copyright and other intellectual property or proprietary rights.