Effective Date: January 1, 2017
If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
1. Fitchek Service
Fitchek provides an online platform that connects sellers of services and activities (“Sellers”) with buyers seeking to utilize or participate in such services and activities (“Buyers”). Sellers can offer a wide variety of services and activities to Buyers on the Service, including passes, classes, experiences, gatherings, and other services and activities (“Listings”).
You may use the Service only if you can form a binding contract with Fitchek, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Fitchek.
Certain Listings may contain services or activities that are suitable only for Users who are the age of majority in their local jurisdiction. Regardless of any functionality Fitchek may provide via the Service to allow Sellers to control the viewing of Listings and booking by Buyers based on age or other demographic constraints, it is the responsibility of the Seller to ensure that Buyers are above the age of majority and that their service or activity is in compliance with applicable local laws. You acknowledge and agree that Fitchek acts as a mere passive conduit to facilitate the listing and booking of Listings, and that Fitchek shall have no liability for verifying the suitability of Listings for individual Users.
You acknowledge that Fitchek provides a marketplace for activities and where both Buyers and Sellers can enter into transactions pursuant to the terms of this Agreement. Fitchek is not in any way liable for any injury that you or anyone in your party may suffer while participating in any Service or Activity. You specifically acknowledge that there may be inherent hazards and risks associated with your participation in the service or activity including, but not limited to: (a) risk of injury from the activity and/or equipment, including the failure of any equipment and the potential for permanent disability and death; (b) possible equipment failure and/or malfunction of your own or others’ equipment, and (c) your own negligence and/or the negligence of others, including but not limited to operator error and guide decision making. In consideration of Fitchek’s roll solely as a marketplace, you hereby RELEASE AND HOLD HARMLESS FITCHEK, its officers, directors, employees, affiliates, subsidiaries, and assigns, WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property, WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE. In addition, upon request of the Seller, Fitchek or both, you may be required to execute a liability waiver absolving Seller and / or Fitchek of any liability associated with your participation in any Activity, or the participation of any member of your group. You agree that if you and / or a member of your group does not execute the required waiver, you or the applicable member of your group, as applicable, may be prohibited from participating in the Activity.
3. Service Rules
In connection with your use of our Service, you may not and you agree that you will not:
(1) violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions; (2) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights; (3) interfere with or damage our Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; (4) use our Service in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to Service; (5) distribute email to individuals other than personal contacts or family relationships; (6) "stalk" or harass any other User of our Service or collect or store any personally identifiable information about any other User (except as expressly permitted by the Service); (7) offer, as a Seller, any service that you do not yourself offer or have permission to sell (without limiting the foregoing, you will not list items as a Seller if you are serving in the capacity of a broker, or listing agent for a third party); (8) register for more than one Fitchek Account or register for a Fitchek Account on behalf of an individual other than yourself; (9) recruit or otherwise solicit any Seller or other User to join third party services or websites that are competitive to Fitchek, without Fitchek’s prior written approval; (10) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity; (11) use automated scripts to collect information or otherwise interact with the Service; (12) use the Service to find a Seller or Buyer and then complete the transaction independent of the Service in order to circumvent the obligation to pay any fees related to Fitchek’s provision of the Listing; (13) as a Seller, submit any Listing with a false or misleading price information, or submit any Listing with a price, service or activity that you do not intend to honor; (14) use, display, mirror or frame the Service, or any individual element within the Service, Fitchek’s name, any Fitchek trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Fitchek’s express written consent; (15) access, tamper with, or use non-public areas of the Service, Fitchek’s computer systems, or the technical delivery systems of Fitchek’s providers; (16) attempt to probe, scan, or test the vulnerability of any Fitchek system or network or breach any security or authentication measures; (17) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Fitchek or any of Fitchek’s providers or any other third party (including another User) to protect the Service or any content thereon; (18) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service; or (19) advocate, encourage, or assist any third party in doing any of the foregoing.
Fitchek has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Fitchek may involve and cooperate with law enforcement authorities in prosecuting Users who violate this Agreement.
4. Account Registration
In order to access certain features of the Service, and to create or book a Listing, you must register to create an account ("Fitchek Account").
You may register to join the Listings directly via the Service. You can also register to join by logging into your account with certain third-party social networking sites (for example, Facebook). By connecting to Company with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may not have more than one (1) active Fitchek Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Fitchek reserves the right to suspend or terminate your Fitchek Account and your access to the Service for any reason or no reason. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Fitchek Account, whether or not you have authorized such activities or actions. You will immediately notify Fitchek, via support@Fitchek.com, of any unauthorized use of your Fitchek Account.
Once you register for a Fitchek Account, you may create Listings. To this end, you will be asked a variety of questions about the service or activity to be listed, including, but not limited to, the location, features, category, minimum capacity, maximum capacity, description, availability schedule and pricing, for which you must provide accurate and true information. In order to be featured in Listings via the Service, all Listings displayed on Fitchek Marketplaces must have valid physical addresses. Listings will be made publicly available via the Service. Other Users will be able to book your offering via the Service based upon the information provided in your Listing. You understand and agree that once one or more Buyers books your offering, the attributes of your Listing (including, but not limited to price) for such booking may not be altered.
You acknowledge and agree that you are solely responsible for any and all Listings you post on the Service. Accordingly, you represent and warrant that any Listing you post and the booking of, or Buyer’s participation in, an offering in a Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any offering included in a Listing you post, including, but not limited to, zoning laws and laws governing rentals of residential and other properties, laws governing the ability to serve alcohol on a premise, laws governing capacity levels, and laws governing noise levels; and (b) not conflict with the rights of third parties. Please note that Fitchek assumes no responsibility for a Seller’s compliance with any applicable laws, rules and regulations.
You agree that any and all Listings you post are not duplicate Listings (defined as being comprised of the same or substantially the same content), both within the same category and across other sub-categories. You also agree to post Listings in the most suitable category. Accordingly, Fitchek reserves the right to remove duplicate Listings and reallocate miscategorized Listings to the correct category.
You understand and agree that Fitchek, nor it’s marketplace partners, does not act as an insurer or as a contracting agent for, or representative of, you as a Seller, and if a Buyer requests a booking of your Listing and participates in your Listing, any agreement you enter into with such Buyer is between you and the Buyer and Fitchek is not a party thereto. Please note that Fitchek reserves the right, at any time and without prior notice, to remove, modify, or disable access to any Listing for any reason, including Listings that Fitchek, in its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or otherwise objectionable.
If you are a Seller, Fitchek makes certain tools available to you to help you to make informed decisions about which Users you choose to confirm for booking for your Listing. You acknowledge and agree that, as a Seller, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who participate in or are otherwise present at the service or activity at your request or invitation, excluding the Buyer (and the individuals the Buyer invites to participate in the service or activity, if applicable.)
Fitchek recommends that Sellers obtain appropriate insurance for their Listings. Please review any insurance policy that you may have for your Listing and any property relating to your offering carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Buyers (and the individuals the Buyer invites to participate in the service or activity, if applicable) while participating in the service or activity you sponsor.
6. No Endorsement
Fitchek does not endorse any Users or any Listings. In addition, although this Agreement require Users to provide accurate information, we do not attempt to confirm, and do not confirm, any User’s purported identity. You are responsible for determining the identity and suitability of others who you contact via the Service. Fitchek will not be responsible for any damage or harm resulting from your interactions with other Users. By using the Service, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular Users or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Fitchek with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Users on the Service regarding any bookings made by you.
YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, BUYERS AND SELLERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
7. Buyer and Seller Bookings and Financial Terms
Bookings and Financial Terms for Sellers
It is the Seller’s responsibility to obtain evidence or receipt of a Buyer’s attendance of a service or activity, in order to be used in any disputes, should they arise.
Fees, paid by the Buyer, are comprised of the Listing Fees (defined below) and the Transaction Fees (defined below.) Where applicable, taxes may be charged in addition to the Listing Fees and Transaction Fees. The Listing Fees, the Transaction Fees and applicable taxes are collectively referred to in this Agreement as the "Total Fees". The amounts due and payable by a Buyer that will be reimbursed to a Seller in consideration of their Listing are the "Listing Fees". Please note that it is the Seller and not Fitchek who determines the Listing Fees. Fitchek charges a fee to Buyers based upon a percentage of applicable Listing Fees which are the "Transaction Fees". The Transaction Fees are added to the Listing Fees to calculate the Total Fees (which will also include applicable taxes) displayed in the applicable Listing. Fitchek will collect the Total Fees at the time of booking confirmation and will remit the Listing Fees to the Seller within a commercially reasonable time.
Fitchek does not currently charge fees for the creation of Listings or for advanced features. However, you acknowledge and agree that Fitchek reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings or for advanced features at some time in the future. Please note that Fitchek will provide notice of any Listing fee or advanced feature fee collection via the Service, prior to implementing such features.
Bookings and Financial Terms for Buyers
The Sellers, not Fitchek, are solely responsible for honoring any confirmed bookings and making available any Listings reserved through the Service. If you, as a Buyer, choose to enter into a transaction with a Seller for the booking of a Listing, you agree and understand that you will be required to enter into an agreement with the Seller and you agree to accept any terms, conditions, rules and restrictions associated with such Listing imposed by the Seller. You acknowledge and agree that you, and not Fitchek, will be responsible for performing the obligations of any such agreements, and Fitchek is not a party to such agreements and disclaims all liability arising from or related to any such agreements. Fitchek has no obligation to provide you with a refund for any booking you make through the Service.
Listings will specify the Total Fees. You agree to pay Fitchek for the Total Fees for any booking requested in connection with your Fitchek Account immediately, or upon confirmation if such requested bookings are to be confirmed by the applicable Seller. Fitchek will collect the Total Fees in accordance with the terms and conditions of this Agreement. Please note that Fitchek cannot control any fees that may be charged to you by your bank related to Fitchek’s collection of the Total Fees, and Fitchek shall not be liable for any such amount.
8. General Booking and Financial Terms
A. Transaction Fees
Fitchek collects transaction fees from Buyers ("Transaction Fees"). Transaction Fees are charged to the Buyer based upon a percentage of the amount of the Listing Fees. Where applicable, taxes may also be charged in addition to the Transaction Fees. Listing Fees are remitted to the Seller’s Fitchek account, within 7 days. Transaction Fees are, as noted above, included in the Total Fees.
Balances will be remitted to Sellers via the Service. Payment shall be remitted via the payment method described on the Service as specified by the selections the Seller makes via the Service.
Fitchek reserves the right to withhold payment or charge back to your account any amounts otherwise due to us under this Agreement, or any amounts due as a result of a breach of this Agreement by you, pending Fitchek’s reasonable investigation of such breach. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. If you dispute any payment made hereunder, you must notify Fitchek in writing within thirty (30) days of any such payment; failure to so notify Fitchek shall result in the waiver by you of any claim relating to any such disputed payment. Please note that for any payments by Fitchek in currencies other than U.S. dollars or Canadian dollars, Fitchek may deduct foreign currency processing costs from such payments. More information on foreign currency processing cost deductions will be available via the Service. Payment shall be calculated solely based on records maintained by Fitchek. No other measurements or statistics of any kind shall be accepted by Fitchek or have any effect under this Agreement.
Except as otherwise provided herein, Transaction Fees are non-refundable. No refunds or credits will be provided once the Buyer’s credit card has been charged.
B. Cancellations and Refunds
If a Seller cancels a confirmed booking made via the Service and opts to refund the Buyers through Fitchek, (i) Fitchek will refund the Total Fees for such booking to the applicable Buyer within a commercially reasonable time of the cancellation, and (ii) the Seller will be charged the Transaction Fees as a cancellation penalty.
If a Seller cancels a confirmed booking made via the Service and opts to refund the Buyers directly, the Seller and Buyer must arrange and agree between themselves a suitable raincheck, make-good, or refund. Fitchek is not responsible or liable for any refunds for Listings. Refunds and cancellations are managed by the Sellers who provide the booked Listings.
If a Seller fails to provide a service or activity, the corresponding Buyers will each have 48 hours to dispute such event. If a Buyer disputes any offering or a Transaction Fee within this timeframe, Fitchek will promptly notify the applicable Seller. The Listing Fees will be put on hold (not yet remitted to the Seller’s account balance), and the Seller will have an additional 48 hours to rebut such dispute, resulting in two scenarios: (i) if the Seller does not rebut such dispute, the Listing Fees will be refunded to the Buyer; (ii) if the Seller does rebut such dispute, the two parties must contact one another to resolve the dispute and submit the resolution to Fitchek within thirty (30) days. If no resolution is received by Fitchek within the first thirty (30) days, Fitchek will resolve the dispute in its sole and absolute discretion. It is the Seller’s responsibility to provide the confirmation code from the contesting Buyer’s receipt, as evidence of such Buyer’s participation in the service or activity.
IRS regulation, regarding federal tax reporting requirements, stipulates that Fitchek must collect IRS Form W-9 from all property owners in the United States. You understand and agree that you are solely responsible for determining your applicable tax reporting requirements in consultation with your tax advisors. Fitchek cannot and does not offer tax-related advice to any Users of the Service. Additionally, please note that each Seller is responsible for determining local indirect taxes and for including any applicable taxes to be collected or obligations relating to applicable taxes in Listings. Where applicable, or based upon request from a Seller, Fitchek may issue a valid VAT invoice to such Seller. You are also responsible for paying any governmental taxes imposed on your purchase from or use of the Fitchek Services, including, but not limited to, sales, use, or value-added taxes. To the extent Fitchek is obligated to collect such taxes, the applicable tax will be added to your billing account.
D. Foreign Currency
As part of the Listings, Fitchek provides a feature through which Users may view fees for various Listings in foreign currencies. These Total Fees listed in foreign currencies are for informational purposes only. You understand and agree that any such foreign currencies are not the official Total Fees and at the time you request a booking you will be notified of the currency in which you will be charged together with the corresponding amount, should your booking be confirmed by a Seller. Unless otherwise communicated to you as contemplated herein, Total Fees are payable in United States dollars in the United States, Canadian dollars in Canada, and United States dollars in the rest of the world.
9. Damage to Seller's Property
You acknowledge and agree that, as a Buyer, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite to, or otherwise provide access to, the property. IN NO EVENT WILL Fitchek BE LIABLE TO A SELLER OR BUYER FOR DAMAGE TO A SELLER’S PROPERTY.
10. Employment and Withholding
Fitchek is not an employment service and does not serve as an employer of any User. As such, Fitchek will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your use of our Service. You understand and agree that if Fitchek is found to be liable for any tax or withholding tax in connection with your use of the Service, then you will immediately reimburse and pay to Fitchek an equivalent amount, including any interest or penalties thereon. Fitchek reserves the right to offset any amounts due to you hereunder in the event Fitchek is found to be liable for any tax or withholding tax in connection with your use of the Service.
11. No Agency
No independent contractor, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
13. Mobile Software
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. Fitchek does not warrant that the Mobile Software will be compatible with your mobile device. Fitchek hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Fitchek account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Fitchek may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Fitchek or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Fitchek reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Fitchek Service.
14. Fitchek Content and User Content License
Subject to your compliance with the terms and conditions of this Agreement, Fitchek grants you a limited, non-exclusive, non-transferable license, to access and view any Fitchek Content solely for your personal and non-commercial purposes solely for the purposes expressly permitted by the Service. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Service, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fitchek or its licensors, except for the licenses and rights expressly granted in this Agreement.
15. User Content
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit profile information, comments, questions, Feedback (defined below), pictures, and other content or information (“User Content”). For the avoidance of doubt, User Content shall include all information posted, transmitted, or otherwise made available by Users on the Service in connection with the creation or booking of Listings.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Fitchek reserves the right, but is not obligated, to reject, modify and/or remove any User Content that Fitchek believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
A) You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
B) Your User Content and Fitchek's use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
C) Fitchek may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
D) To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Fitchek takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Fitchek shall not be liable for any damages you allege to incur as a result of User Content.
A. User Content License Grant
By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Fitchek a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Fitchek’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Service ("Feedback"). You may submit Feedback by emailing us at support@Fitchek.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Fitchek and you hereby irrevocably assign to Fitchek and agree to irrevocably assign to Fitchek all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Fitchek’s request and expense, you will execute documents and take such further acts as Fitchek may reasonably request to assist Fitchek to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
C. Digital Millennium Copyright Act
Since we respect artist and content owner rights, it is Fitchek’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Fitchek’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Fitchek to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice,
Address: 28 Deakin St., Ottawa ON, K2E 8B7
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Fitchek and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Fitchek's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Fitchek has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Fitchek may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
16. Proprietary Rights Notices
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (“Fitchek Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Fitchek and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Fitchek Content. Use of the Fitchek Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
17. Third Party Links
The Service may contain links to third-party websites or resources. You acknowledge and agree that Fitchek is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Fitchek of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
18. Termination and Fitchek Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement or your access to our Service, and (b) deactivate or cancel your Fitchek Account. Upon termination we will promptly pay you any amounts we determine we owe you in our sole discretion, including those amounts we are legally obligated to pay you. In the event Fitchek terminates this Agreement, or your access to our Service or deactivates or cancels your Fitchek Account you will remain liable for all amounts due hereunder. You may cancel your Fitchek Account at any time via the Cancel Account feature or by sending an email to support@Fitchek.com. Please note that if your Fitchek Account is cancelled, we do not have an obligation to delete or return to you any User Content you have posted to the Service.
19. NO WARRANTIES
IF YOU CHOOSE TO USE THE SERVICE, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT Fitchek DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO, BUYERS AND SELLERS. THE SERVICE AND COLLECTIVE CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Fitchek EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Fitchek MAKES NO WARRANTY THAT THE SERVICE, LISTINGS OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Fitchek MAKES NO WARRANTY REGARDING THE QUALITY OF THE SERVICE OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY LISTINGS OR CONTENT OBTAINED THROUGH THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Fitchek OR THROUGH THE SERVICE OR ANY CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY SELLERS OR BUYERS. YOU UNDERSTAND THAT Fitchek DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE OR TO REVIEW OR VISIT ANY LISTINGS. Fitchek MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE.
YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, BUYERS AND SELLERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
20. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE, AND YOUR CREATION OR BOOKING OF ANY LISTINGS VIA THE SERVICE REMAINS WITH YOU. NEITHER Fitchek NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE, OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR LISTINGS, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SERVICE OR ANY CONTENT THEREON, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Fitchek HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL Fitchek’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY OFFERING VIA THE SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR CONTENT AND IN CONNECTION WITH ANY INTERACTIONS WITH ANY OTHER USERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SERVICE AS A BUYER IN THE CORRESPONDING BOOKING GIVING RISE TO THE LIABILITY, OR IF YOU ARE A SELLER, THE AMOUNTS PAID BY Fitchek TO YOU IN THE CORRESPONDING BOOKING GIVING RISE TO THE LIABILITY, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Fitchek AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Fitchek and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Service; (b) your User Content; and (c) your (i) interaction with any User, (ii) booking of a Listing, (iii) creation of a Listing or (iv) the use, condition or rental of a Listing by you, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Listing.
22. Reporting Misconduct
If you interact or transact with anyone who you feel is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Fitchek by contacting us with your police station and report number at support@Fitchek.com; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you. If as a User you find a Listing that looks misleading or is not in line with this Agreement, then you should flag such Listing using the flag tool.
23. Entire Agreement
You may not assign or transfer this Agreement, by operation of law or otherwise, without Fitchek’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. Fitchek may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to this Agreement, will be in writing and given by Fitchek (i) via email (in each case to the address that you provide) or (ii) by conspicuous posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
26. Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New Castle County, Delaware or the United States District Court for the District of Delaware, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below
27. Dispute Resolution
In the unlikely event that Fitchek’s customer service department is unable to resolve a complaint you may have to your satisfaction (or if Fitchek has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve any claim, dispute, or controversy (excluding any Fitchek claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in the city of San Francisco, California under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Fitchek from seeking injunctive or other equitable relief from the courts as necessary to protect any of Fitchek’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Fitchek ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
The failure of Fitchek to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fitchek. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
29. Contacting Fitchek
If you have any questions about this Agreement or the Service, please contact Fitchek at support@Fitchek.com.