TRULY FIT, LLC TERMS OF USE

Last modified: October 22, 2024

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED INSECTION XIII.

Thank you for choosing Truly Fit, LLC (“Truly Fit”). By using Truly Fit’s services and resources, you agree to these “Terms of Use.” If you disagree with any of the terms below, Truly Fit does not grant you a license to use any of Truly Fit’s services, applications, systems, website, resources or other offerings (collectively, “Services” and individually a “Service”). Truly Fit reserves the right to update and change, from time to time, these Terms of Use and all documents incorporated by reference. You can always find the most recent version of these Terms of Use at www.trulyfitllc.com. Truly Fit may change these Terms of Use by posting a new version without notice to you. Use of Truly Fit after such change constitutes acceptance of such changes. THE USE OF ANY TRULY FIT SERVICE WILL CONSTITUTE ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THE ABOVE, PLEASE DO NOT UTILIZE TRULY FIT SERVICES.

Truly Fit, LLC, an Ohio limited liability company, provides a variety of services and features directed to coaches, sport enthusiasts, and athletes, trainees and other clients of Truly Fit, through its online and mobile fitness training offerings (“Services”). The Truly Fit Services are provided through its website www.trulyfitllc.com, related mobile applications and subdomains (collectively, “Sites” and individually a “Site”).

I. Definitions

The following terms as used in this Terms of Use should be defined as follows:

A. Website: “Website” refers to the online platform operated by Truly Fit LLC, accessible at www.trulyfitllc.com, which provides services related to sports training, coaching, and fitness.

B. User: “User” means any individual who accesses or uses the Website, including Athletes, Coaches, Trainees, or any other visitor or participant.

C. Athlete: An “athlete” is a user who engages in sports activities, seeks training related to said sports activities, or participated in sports-related programs offered by Truly Fit LLC to improve athletic performance or skills in a particular sport or athletic field.

D. Coach: A “coach” is a user who provides sports training, coaching, or instruction services through the website to athletes or trainees.

E. Trainee: A “trainee” is a user who receives sports training, coaching, or instruction services from coaches through Truly Fit LLC to improve athletic performance or skills for personal benefit or fitness purposes.

F.  Content: “Content” refers to all information, data, text, images, videos, or materials available on the website, whether provided by Truly Fit, its users, or third parties.  

G. Account: “Account” represents a user’s personal profile or dashboard on the website, which allows access to specific features and functionalities based on account type, as described in Section III. 

H. Coaching Agreement: A “Coaching Agreement” is a formal document that outlines the terms and conditions of a coaching relationship between a coach and a client. 

II.        Licensed Uses and Restrictions

Truly Fit, LLC agrees to license to you, on a worldwide, unless prohibited by law, non-exclusive, non-sublicensable basis on the terms and conditions set forth herein. These Terms of Use define legal use of the Truly Fit’s Services, all updates, revisions, substitutions, and any copies made by or for you. All rights not expressly granted to you are reserved by Truly Fit.

A.        Subject to the restrictions set forth in these Terms of Use, you may use Services and any updates provided by Truly Fit (in its sole discretion). Your license to use the Services under these Terms of Use continues until it is terminated by either party. You acknowledge that from time-to-time technical trouble issues may occur. Truly Fit will use reasonable business efforts to correct such issues. You may terminate the license by discontinuing use of all of the Services. Truly Fit may terminate the license at any time for any reason. These Terms of Use terminate automatically if (i) you violate any term of these Terms of Use, (ii) Truly Fit publicly posts a written notice of termination on Truly Fit’s web site, (iii) Truly Fit sends a written notice of termination to you, or (iv) Truly Fit ceases providing access to Services to you. Termination of the license for any reason shall be subject to the refund policy set forth in VI B.

B.        You agree to provide, maintain and update true, accurate, current and complete information about yourself as requested by Truly Fit from time to time through a health questionnaire and/or waiver. If you provide any information that does not satisfy this provision, or Truly Fit has reasonable grounds to suspect as much, Truly Fit has the right to suspend or terminate your access to Services and refuse your access to any and all current or future use of the Services. You also agree (a) to promptly notify Truly Fit at TrulyFitLLC@gmail.com of any unauthorized use of the Services that you become aware of within three (3) business days. Truly Fit explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section and/or any unauthorized use of the Services.

C.        You understand that there may be fees for use of the Truly Fit Services and licensing fees. You agree that you shall submit payment for these fees and any other fees imposed by Truly Fit, in Truly Fit’s sole discretion. The amount of a fee may change from time to time in Truly Fit’s sole discretion, effective immediately upon posting. You understand and agree that programmatic methods intended to subvert a fee are considered a violation of these Terms of Use.

D.        To use Truly Fit Services, you must agree to these Terms of Use.

E.         YOU SHALL NOT:

1. Use the Services in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials (e.g. Nazi memorabilia), goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items, non-packaged food items, weapons and accessories;

2. Use the Services in connection with any commercial activity, or in connection with any materials, website, or application which is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or which advertises for a product or service which is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

3. Use the Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with these Terms of Use;

4. Sell, lease, or sublicense the Services or access thereto without Truly Fit’s prior, express, written permission;

5. Use the Services in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of these Terms of Use;

6. Reverse engineer, decompile, or otherwise separate the content contained within any Service; or

7. Use a Service in any manner that competes with products or services offered by Truly Fit.

F. If you wish to use the Services in any manner or for any purpose inconsistent with these Terms of Use, you may do so only by obtaining Truly Fit’s prior written authorization, which may be granted or denied in Truly Fit’s sole discretion. To request such authorization, email us at TrulyFitLLC@gmail.com.

III. Accounts and Subscriptions

A.        Truly Fit designates various types of accounts. You may choose your account type when you first register. Creating a free account gives you access to Truly Fit’s limited catalog of free endurance and/or strength training content and tracking which can be used. To access additional features and content, you must choose to upgrade your account to a higher tier. The upgrade process may require you to pay additional fees as outlined during the upgrade process. 

B.        Please review the following account types and their associated terms carefully before registering or upgrading your account. By creating or upgrading your account, you agree to be bound by these terms.  

            1.         Accounts for Athletes[MP1] :

            a.         Free Athlete Account. A “Free Athlete Account” provides you limited access to view, upload, and access your own content. Users may also access any content made available to users of this account. 

            b.         Paid Athlete Account. A “Paid Athlete Account” offers greater access to view and use additional features and functions that are not available on the “Free Athlete Account.” Users with this account enjoy enhanced capabilities and premium content. 

            c.         Coached Account. A “Coached Account” grants access as designated by your Coach and is linked to the Coach Account for the Coach you have designated during your registration or through the Site. Users with this account receive personalized coaching and guidance tailored to their individual needs and goals. Users for this account are fourteen (14) and older.

            d.         Coach Account. A “Coach Account” allows you, as a coach, to operate independently of Truly Fit’s Services to provide coaching services and content to your athletes through the Sites and Services. Subscriptions to Coach Accounts permit you to create your own training programs and teams, and offer your training services and programs including, but not limited to, text, images, illustrations, graphics, workout data, audio, video clips, or other materials (each referred to as “Training Program”). Your Coach Account allows continued communication with Truly Fit LLC to discuss coaching matters if necessary. 

            e.         Team Training. “Team Training” are hours for contract by your Coach/Team. Custom coaching and programming for your team. Together we will address the needs of the team along with any individuals. Head Coaches will receive a (60) minute meeting and periodic follow-ups as needed to discuss goals and needs of the team. Hours may be scheduled in (30) minute increments as schedule allows. Team conditioning workouts. Hours include practice attendance for movement assessments, mobility, flexibility, warm up & cool downs to address soreness, weakness, tight muscles, etc. Game attendance as schedule allows with up to (1) hour of travel. Additional fees for game attendance more than (1) hour Lodging, Travel, Food, etc.

f.          App Access. An “App Access” allows you, as a Trainee, to operate independently of Truly Fit’s Services to track and create your own workouts. Subscriptions to Truly Fit App Access permits you to create your own training programs including, but not limited to, text, images, illustrations, graphics, workout data, audio, video clips, or other materials (each referred to as “Training Program”). Your Truly Fit App Access Account allows continued communication with Truly Fit LLC to discuss coaching matters if necessary through email, SMS text messaging and or/ Truly Fit app messaging for advice on nutrition, training, lifestyle, and mindset advice with responses within forty-eight (48) hours.

            2.         Accounts for Other Trainees: 

            a.         Coach Assisted Program[MP2] . A “Coach Assisted Program” account provides an onlinecustomized workout program based on the details submitted by you upon registration and tailored to optimize your goals and provide nutritional guidance; and sixty-minute (60) check-ins every three (3) months to discuss the effectiveness of the current workout program, provide feedback, and collaborate on planning the next phase of training. 

            b.         App Access. A “App Access” allows you, as a Trainee, to operate independently of Truly Fit’s Services to track and create your own workouts. Subscriptions to Truly Fit App Access permits you to create your own training programs including, but not limited to, text, images, illustrations, graphics, workout data, audio, video clips, or other materials (each referred to as “Training Program”). Your Truly Fit App Access Account allows continued communication with Truly Fit LLC to discuss coaching matters if necessary through email, SMS text messaging and or/ Truly Fit app messaging for advice on nutrition, training, lifestyle, and mindset advice with responses within forty-eight (48) hours.

            c.         Gold Program. A “Gold Program” account provides access to the Truly Fit App; a customized three-month training plan tailored to the trainee’s goals and schedule, defining exercises, sets, reps, and intensity; a personalized nutritional guidance, and tailors a cardio plan to meet your specific goals; and communication through email, SMS text messaging and/or Truly Fit App messaging for advice on nutrition, training, lifestyle, and mindset advice with responses within forty-eight (48) hours, weekly progress assessments conducted via Loom Videos to make necessary adjustments, sixty-minute (60) check-ins every three (3) months to discuss progress, challenges, and recommendations. 

            d.         1:1 Coaching – Platinum Program. A “1:1 Coaching Platinum Program” account provides personalized nutritional guidance with adjustments as needed to optimize results; a customized three-month training plan tailored to your goals and schedule, with defining exercises, sets, reps, and intensity, including Zoom movement assessment and periodic follow-ups, as needed; tailored cardio plan designed to achieve your goals, with ongoing adjustments; and communication through email, SMS text messaging and/or Truly Fit App messaging for advice on nutrition, training, lifestyle, and mindset, with responses guaranteed within forty-eight (48) hours; weekly progress assessments conducted via Loom Videos to fine-tune training, nutrition, and cardio bi-weekly sixty-minute (60) calls for in-depth discussions on progress, challenges, and recommendations.

            e.         Hybrid – Diamond Program. A “Hybrid Diamond Program” Account provides personalized nutritional guidance with adjustments as needed to optimize results; a customized three-month training plan tailored to your goals and schedule, with defining exercises, sets, reps, and intensity; three in-person sessions every month and two fitness classes per month; customized cardio plan with ongoing adjustments as needed; and communication through email, SMS text messaging and/or Truly Fit App messaging for advice on nutrition, training, lifestyle, and mindset, with responses guaranteed within forty-eight (48) hours, weekly check-ins via Loom Videos to assess progress and make adjustments to training, nutrition, cardio as needed to meet your goals and schedule, and bi-weekly sixty-minute (60) calls for in-depth discussions on progress, challenges, and recommendations.

C.        Children’s Privacy and Protection.

            1.         Truly Fit’s policy regarding collection of Personal Information of children under the age of 18 is outlined in Truly Fit’s Privacy Policy. 

            2.         You must be 18 years or older to register for an account of any type, absent consent from a parent or legal guardian. 

            3.         If you are under the age of 18 and wish to register for an account, Truly Fit will collect your name and date of birth (“limited Personal Information”), then will request the user to provide the contact information of the user’s parent/legal guardian to obtain consent to register an account.  No personal information will be collected from the user, nor will Truly Fit permit the user to activate an account until Truly Fit receives verifiable consent from the user’s parent/legal guardian. If Truly Fit does not receive verifiable consent from the parent/legal guardian within seventy-two (72) hours, the account and all information provided by the user in connection with creating the account will be deleted. 

            4.         It is a violation of these Terms of Use for children under the age of 18 to create an account by misrepresenting their age. If Truly Fit has reason to believe that an account is operated by a minor without verified consent from a parent/legal guardian, or if Truly Fit has become aware that a child has misreported his or her age or otherwise circumvented Truly Fit’s requirements for obtaining consent from a parent/legal guardian, Truly Fit will lock the account and send a notification to the parent/legal guardian identified by the minor when creating the account (if provided) to inform them of the unauthorized account, and to provide them an opportunity to grant consent to use the account. If consent is not granted within seventy-two (72) hours, the account and all information provided by the user will be deleted. 

            5.         Verifiable consent will be obtained through a waiver provided by Truly Fit to the minor’s parent/legal guardian. 

            6.         For more information, please see Truly Fit’s Privacy Policy. 

D.        Additional Terms. 

            1.         By agreeing to these terms and conditions, you acknowledge that you are solely responsible for your selection of any coach or other third party you choose to assist you with your training, exercise, or fitness (your “Coach”). Further, you acknowledge that you are solely responsible for your selection of and relationship with your sponsor (your “Sponsor”). 

            2.         Truly Fit is not responsible for and does not provide support or maintenance for any Coach, Sponsor, Coaching Services, or Sponsor Benefits, regardless of whether the Coach or Sponsor uses Truly Fit’s Sites or Services. Your access to and use of Coaching Services and/or Sponsor Benefits may be governed by a separate agreement (“Coaching Agreement” or “Sponsor Agreement”). The Terms of Use will still apply to your use of Truly Fit’s Sites and Services, notwithstanding such separate agreement. 

IV. Ownership and Relationship of Parties

The Services may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Truly Fit’s rights apply to the Services and all output and executables of the Services, excluding any software components developed by you which do not themselves incorporate the Services or any output or executables of the Services. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in these Terms of Use. Truly Fit owns all rights, title, and interest in and to the Services. These Terms of Use grant you no right, title, or interest in any intellectual property owned or licensed by Truly Fit, including (but not limited to) the Services and Truly Fit’s trademarks.

V. Support

Truly Fit may elect to provide you with support or modifications for the Services (collectively, “Support”), in its sole discretion, and may terminate such Support at any time without notice to you. Truly Fit may change, suspend, or discontinue any aspect of the Services at any time, including the availability of any Service. Truly Fit may also impose limits on certain features and services or restrict your access to parts or all of the Services or the Truly Fit website without notice or liability. 

VI. Fees and Payments

A.        Fees. 

            1.         Accounts for Athletes:

            a.         Free Athlete Account. This program grants seven (7) weeks of free access to a baseball program for athletes ages fourteen (14) and up. No payments necessary. Automatically terminates after seven weeks. 

            b.         App Access, Paid Athlete Account, & Coach Account. You are required to pay the fees for your App Access, Paid Athlete Account, and/or Coach Account for the term of the plan selected in your registration prior to obtaining access to your Account. All fees will be payable in advance, unless otherwise specified. All plans will automatically renew unless you terminate your account within the time specified in your registration or on the Site for your plan before your plan is scheduled to renew. You are free to terminate your App Access, Paid Athlete Account, and/or Coach Account at any time. 

            b.         Coached Account. Payment of fees for access to a Coached Account will be as specified by the terms of your applicable Coaching Agreement. 

2.         Accounts for Other Trainees. You are required to pay the fees for your Coach Assisted Program, Gold Program, 1:1 Coaching Platinum Program, and/or Hybrid Diamond Program, for the term and plan selected in your registration prior to obtaining access to the program. All fees will be payable in advance, unless otherwise specified. All plans will automatically renew unless you terminate your account within the time specified in your registration or on the Site for your plan before your plan is scheduled to renew. You are free to terminate your accounts at any time.

            3.         Additional Fees. Truly Fit reserves the right to charge additional fees for future use of or access to the Services in Truly Fit’s sole and absolute discretion. If Truly Fit decides to charge additional fees for the Services, such charges will be disclosed to you prior to their effect. Truly Fit also reserves the right to include advertising in or associated with Services.

4.         Account Termination and App Access. Notwithstanding the foregoing outlined in this agreement, Truly Fit reserves the right to terminate your account after thirty (30) consecutive days of inactivity. In the event that you fail to renew your subscription or discontinue payments, Truly Fit also reserves the right to remove access to the app. The company may, at its discretion, offer month-to-month access to the app on a non-renewable basis. 

B.        Payment Methods. Payments of fees associated with the accounts described in Section III may be made through the following payment methods: 

            1.         Wave: Payments can be processed securely through Wave, an online payment processing platform.

            2.         Trainerize: Payments can be facilitated through the Truly Fit app, Trainerize, an integrated platform for fitness professionals. 

            3.         Acuity Scheduling: For athletes or trainers training with Premier Athletics Ohio, payments may be made through Acuity Scheduling.

            4.         Stripe: Payments can be made using Stripe, an online payment processing platform. 

            5.         Venmo: Payments can be made through Venmo, a digital wallet service, addressed to @Christine-Bernazzoli.

            6.         Cash or Check: Payments can also be made by cash or by check. Checks should be made payable to “Truly Fit LLC.” 

            7.         Calendly: Payments can be made through Calendly, an online scheduling and payment platform. 

C.        Refund Policy. 

            1.         For Athletes and Trainees. All payments are final. No refunds will be issued unless otherwise indicated. In the event of a dispute regarding the identity of the person submitting an entry, the entry will be deemed submitted by the person in whose name submission is associated with. All disputes regarding fees and refunds are subject to dispute resolution and arbitration set forth in Section XV. 

            2.        For Athletes and Trainees Classes and Sessions. Athletes and trainees are entitled to refunds due to a last-minute cancellation or medical reason. To qualify for a refund due to a last-minute cancellation, athletes and trainees must notify Truly Fit of the cancellation at least twenty-four (24) hours before the scheduled session. In cases where a cancellation is unavoidable and occurs less than 24 hours before the scheduled session, clients may request to reschedule the class or session. To request a refund for a last-minute cancellation, athletes and trainees must contact Christine Paul. Refund or reschedule requests will be reviewed on a case-by-case basis. In all other instances, payments are final, and no refunds will be issued. Additionally, refunds may not be granted for repeated last-minute cancellations or cancellations due to reasons that fall outside these refund policy guidelines. All disputes regarding fees and refunds are subject to dispute resolution and arbitration set forth in Section XV.

D.        Additional Terms. 

            1.         Payment Responsibilities. You understand that you are responsible for the agreed-upon rate of services for the length of the contract purchased through any of the payment methods described above in subsection B. Payment terms may vary depending on the agreement entered into between Truly Fit and the athlete or trainee. Truly Fit is not responsible for any overdraft charges, over-limit charges, NSF fees by your bank or credit card company, or for any credit card theft or fraud that results from utilizing any of the payment methods described above in subsection B. Fees for services may be prepaid. 

            2.         Missed Payments. Missed payments may result in suspension or termination of Truly Fit’s Services. If, after ten (10) days from a missed payment, you have not made arrangements with Truly Fit to make up said missed payment, Truly Fit’s services will be cancelled without refund. 

            3.         Rights Reserved. Truly Fit reserves the right to cancel the program if at any point we feel it is not advantageous for the program to continue. In the event that Truly Fit cancels the program, you are only responsible for the pro-rata share of the program services received. Your agreement with Truly Fit will stay in force and effect until you no longer seek to renew said contract. Failure to pay required fees may result in Truly Fit terminating the agreement 

VII. Non-Disparagement. 

You agree that you will not make any critical, negative or disparaging remarks about Truly Fit, its shareholders, partners, attorneys, members, directors, officers, agents, employees or representatives, affiliated, successors, or predecessor companies, the goods or services it provides, its business or employment practices, its executive leadership, strategies and/ or business prospects. Truly Fit, in its sole and absolute discretion, may discontinue your access to any Service or all Services. 

VIII. Disclaimer of Any Warranty

TRULY FIT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID.

TRULY FIT DOES NOT GUARANTEE ANY SPECIFIC FITNESS RESULTS FROM THE USE OF THE APP OR SERVICES. RESULTS MAY VARY DEPENDING ON INDIVIDUAL CIRCUMSTANCES, AND PERSONAL EFFORST AND OUTCOMES ARE NOT ASSURED. 

THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND TRULY FIT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT.

YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.

IX. Limitation of Liability

A.        TRULY FIT SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT TRULY FIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL TRULY FIT BE LIABLE TO YOU FOR ANY AMOUNT. THE MAXIMUM DAMAGES TO WHICH YOU MAY BE ENTITLED FOR ANY REASON IS THE SUM PAID TO TRULY FIT IN THE PRIOR TWELVE (12) MONTHS ENDING ON THE DATE YOU FIRST NOTIFIED TRULY FIT OF YOUR CLAIM IN WRITING.

B.        BY PARTICIPATING IN PERSONAL TRAINING SESSIONS, YOU ACKNOWLEDGE AND ACCEPT THE INHERENT RISKS ASSOCIATED WITH PHYSICAL EXERCISE, INCLUDING BUT NOT LIMITED TO, THE RISK OF INJURY. TRULY FIT, ITS TRAINERS, AND AFFILIATES SHALL NOT BE HELD LIABLE FOR ANY INJURIES, DAMAGES, OR LOSSES THAT MAY OCCUR AS A RESULT OF YOUR PARTICIPATION IN THESE SESSIONS. YOU AGREE THAT YOUR PARTICIPATION IS VOLUNTARY AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ANY INJURIES OR DAMAGES THAT MAY ARISE. IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR PERSONAL TRAINING SERVICES. 

X. Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS VI AND VII MAY NOT APPLY TO YOU.

XI. Release and Waiver

To the maximum extent permitted by applicable law, you hereby release and waive all claims against Truly Fit, and its parent companies, subsidiaries, affiliates, officers, members, directors, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising from or in any way related to your use of the Services. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

XII. Hold Harmless and Indemnity

To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify Truly Fit and its parent companies, subsidiaries, affiliates, officers, members, directors, agents, licensors, co-branders or other partners, and employees from and against any third party claim arising from or in any way related to your use of the Services, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. Truly Fit shall use good faith efforts to provide you with written notice of such claim, suit or action.

XIII. Collection of Personal Information

By registering for Truly Fit, you agree to Truly Fit’s use of your personal information as described in Truly Fit’s Privacy Policy, located at www.trulyfitllc.com.

XIV. Truly Fit’s Reservation of Rights

Truly Fit expressly reserves the right to immediately modify, suspend or terminate your access and use of the Services, if Truly Fit, in its sole discretion: (a) believes you have violated or tried to violate the rights of others; (b) becomes aware of information indicating a safety concern for you, other Truly Fit customers or clients, or the general public, or (c) believes that you have acted inconsistently with the spirit or letter of these Terms of Use. The Services, and its related benefits are offered at the discretion of Truly Fit, and Truly Fit has the right to modify or discontinue, temporarily or permanently, the Services, in whole or in part for any reason, with or without notice to you. You agree that Truly Fit will not be liable to you or to any third party for any modifications or discontinuance of the Services.

XV. Binding Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. BY ACCESSING AND USING THE SERVICES, EACH REGISTRANT AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH TRULY FIT, WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH BELOW, WITHOUT RESORT TO ANY FORM OF LITIGATION OR CLASS ACTION. 

A.        Initial Dispute Resolution. Truly Fit’s team is available to address any concerns you may have regarding the Services. Truly Fit’s team is able to resolve most concerns quickly. The parties shall use their best efforts through this customer care process to settle any dispute, claim, question, or disagreement and good faith negotiations, which shall be a condition to either party initiating a lawsuit or arbitration.

B.        Binding Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time of informal dispute resolution under the Initial Dispute Resolution provision in Section XV(A), then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms of Use (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its rules and the supplementary procedures for consumer related disputes, excluding any rules or procedures governing or permitting class actions.

The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Use, including, but not limited to any claim that all or any part of these Terms of Use are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

The rules governing the arbitration may be accessed at www.adr.org. The arbitration rules also permit a party to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

C.        Location. Arbitration will take place in Medina County, Ohio.

D.        Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND TRULY FIT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

E.         Exception – Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its Intellectual Property Rights (“Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court located in Medina County, Ohio for disputes or claims within the scope of that court’s jurisdiction.

F.         30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: TrulyFitLLC@gmail.com. The notice must be sent within thirty (30) days of your first use of the Services otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Truly Fit also will not be bound by them and Truly Fit reserves the right to decline service and refund payments made as of the date of receipt of your notice.

G.        Jurisdiction, Venue and Service. For any dispute not subject to arbitration, you and Truly Fit agree to submit to the personal and exclusive jurisdiction of and venue in the state courts located in Cuyahoga County, Ohio. You further agree to accept service of process by regular U.S. mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. 

These Terms of Use, the relationship between you and Truly Fit, and any issues and questions regarding the rights and obligations of a customer or client in connection with Truly Fit shall be governed by, and construed in accordance with, the laws of the State of Ohio, U.S.A., without giving effect to conflict of laws provisions.

XVI. General Terms

A.        Certification. Truly Fit provides a Certified Personal Trainer by the National Federation of Professional Trainers (NFPT). Truly Fit’s Certified Personal Trainer is not a Registered Dietitian, nor are they medical professionals such that they would prescribe medication, test levels in the body, provide licensed health care, medical services, or to diagnose, treat or cure any medical disease, condition, or other physical or mental diagnosed ailment of the human body. Truly Fit’s Certified Personal Trainer is a mentor and guide who has been trained in fitness and nutrition coaching to help clients reach their own goals by helping clients devise and implement positive, effective, and sustainable lifestyle changes based on the program provided.       

B.        Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of the Terms of Use, you and Truly Fit shall be and act independently and not as partner, joint venturer, independent contractor, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of Truly Fit, express or implied, and you shall not attempt to bind Truly Fit to any contract.

C.        Invalidity of Specific Terms. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and the other provisions of such documents remain in full force and effect.

D.        Amendment. Truly Fit reserves the right, in its sole and absolute discretion, to change, modify, add or delete portions of these terms of use at any time without notice, and it is your responsibility to review these terms of use for any changes. Your use of the Services following any amendment of these terms of use will signify and constitute your assent to and acceptance of such revised terms of use.

E.         Location of Lawsuit and Choice of Law. The Terms of Use and the relationship between you and Truly Fit shall be governed by the laws of the State of Ohio without regard to its conflict of law provisions. You and Truly Fit agree to submit to the personal jurisdiction of the courts located within Cuyahoga Medina County, Ohio.

F.         No Waiver of Rights by Truly Fit. Truly Fit’s failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision.

G.        Miscellaneous. The section headings and subheadings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of the Terms of Use. Any construction or interpretation to be made of the Terms of Use shall not be construed against the drafter. The Terms of Use constitute the entire agreement between Truly Fit and you with respect to the subject matter hereof.

H.        Severability.  The invalidity or unenforceability of any particular provision of these terms of use shall not affect the other provisions hereof, and this agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. The waiver by Truly Fit of a breach of any provision of this agreement by you shall not operate or be construed as a waiver of any subsequent breach by you. 

I.          Construction.  All provisions of these terms of use shall be construed to the fullest extent permitted by law.