Last Updated: Sep 20, 2023
SERVICE TERMS APPLICABLE TO BUSINESSES ("BUSINESS USERS"):
These Terms of Service (this “Agreement”) set forth the terms and conditions that apply to your access and use of the internet website located at www.trainerize.com and the Trainerize mobile software application (collectively, the “Site”), each owned and operated by TSR Gym Technik Ltd. and its affiliates (collectively, “Trainerize”, “we”, “our” or “us”), and the services available thereon, including without limitation the services described in the “Service Description” section below (collectively, the “Service”).
If you have registered to use the Service for the purpose of accessing, obtaining or otherwise acquiring fitness training, meal planning or other related services from a trainer, gym, coach or other fitness or nutrition professional, you are an “End User” and this Agreement does not apply to you. The Terms of Service applicable to End Users are available here: https://www.trainerize.com/endUserTerms
If you have registered to use the Service by placing an order for a specific usage plan with Trainerize, thereby allowing access to and use of the Site by various End Users, or as a trainer, gym, coach or other fitness or nutrition professional, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training, meal planning or other related services to one or more End Users, you are a “Business User” and you agree to be bound by this Agreement.
BY ACCESSING OR USING THE SITE OR SERVICE, OR BY CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON IN RELATION TO THESE TERMS OF SERVICE, YOU ARE INDICATING YOUR ACCEPTANCE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SITE OR THE SERVICE. IF YOU ARE DISSATISFIED WITH THIS AGREEMENT OR ANY RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE SITE OR SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PLACE ANY ORDER FOR THE SERVICE ON OUR SITE AND YOU MAY NOT USE THE SERVICE.
IMPORTANT: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN THE RESOLUTION OF CLAIMS BETWEEN TRAINERIZE AND YOU, INCLUDING THE REQUIREMENT THAT YOU RESOLVE ANY DISPUTES YOU HAVE WITH US THROUGH FINAL AND BINDING ARBITRATION, AND THAT YOU WAIVE THE RIGHT TO A JURY TRIAL OR CLASS ACTION LAWSUIT. PLEASE SEE THE “DISPUTES” SECTION BELOW FOR MORE INFORMATION.
By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, and you agree that you have reviewed and understand Trainerize’s Privacy Policy located at https://www.trainerize.com/privacy (the “Privacy Policy”), as it may be amended from time to time in the future.
We may amend any part of this Agreement by adding, deleting, or varying its terms from time-to-time in our discretion. We will provide you with notice of the proposed amendment by posting an amended version of this Agreement with a new “Last Updated” date and alerting you of such amendment by email or through a notification on the Service. We will include a link to the previous version of the terms beneath the new “Last Updated” date.
The amendments will take effect 30 days after the date on which the amended version is posted. Prior to that date, the previous version of this Agreement will continue to apply.
If you disagree with any amendments, you may terminate this Agreement by ceasing to use the Site and Service at any time within the 30-day period before the amendments take effect. If the amendment increases your obligations under this Agreement, or decreases our obligations under this Agreement, then you can also terminate in the 30 days after the amendments take effect. In either case, there is no cost or penalty for terminating. If you do not cease using the Site and Service during that time, then by your continued use, you are considered to have accepted the proposed amendments.
Ability to Enter into this Agreement
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Service Description
The Service is a platform that facilitates communications, interactions, and transactions between Business Users and End Users for the purpose of enabling Business Users to monitor, coach, train and communicate with End Users, and enabling End Users to access workout and meal plans, track their progress, access their appointments and classes, buy products, and more. Trainerize does not provide or perform training or coaching. Trainerize is not responsible for any interactions between Business Users and End Users that are facilitated through or in connection with the Service, nor does Trainerize have any control over the quality, timing, provision or failure to provide, or any aspect whatsoever relating to the provision of coaching, training, workouts, meal plans, progress tracking, appointments, classes, product purchases and other services provided by Business Users to End Users
Your Contractual Relationship with End Users
This Agreement governs the relationship between Trainerize and a Business User and, in particular, how a Business User is permitted to make use of the Service in its commercial endeavours. If you elect to interact with End Users in connection with the Service, you should enter into a contract with each such End User and you hereby represent and warrant to us that you have obtained all rights and consents necessary from the End User to use their content submitted through the Service as intended under the Service. Trainerize is not party to any contract you enter into with an End User and to the extent permitted by law, accepts no liability whatsoever under or in connection with any such contract. You are solely responsible for ensuring that any contract you enter into with an End User complies with all applicable laws.
Intellectual Property Rights
All material available on the Site and all material and services provided by or through Trainerize, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel”, layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, Trainerize grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Materials that we make available to you for the purposes of using the Service as permitted by this Agreement. You are not permitted to download, copy or otherwise store any Materials.
If Trainerize, in its sole discretion and without notice, considers that there is an immediate security or operational risk to the Service or any of its users, data, or Materials, or to your or a third party system, then Trainerize may immediately suspend access to or use of the Service by you or any or all Business Users or End Users. The suspension of use and access is not a breach of this Agreement. You acknowledge that the preservation of security, confidentiality and data is paramount. Trainerize has no liability to you for suspending the Service under this provision or for any other reason, with or without cause.
This section does not apply to Content (as defined below); however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Trainerize related to the Service, the Site or Trainerize or its business (“Feedback”) are and will be Trainerize’s exclusive property without any compensation or other consideration payable to you by Trainerize, and you do so of your own free will and volition. Trainerize may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Trainerize may decide into the Site, the Service, its software, documentation, business or other products or services, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Trainerize in any Feedback and, as applicable, waive any moral rights.
For the purposes of this Agreement and the Privacy Policy, “personal information” is any information about or relating to an identified or identifiable individual, as defined in our Privacy Policy.
Trainerize retains the right to use or share any Aggregated Data generated by anyone using the Site or the Service, including our users, for the purpose of enhancing and providing the Service. “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information. You are still responsible for any and all personal information that is part of any Content.
Your Account
In order to use the Service, you must setup an account (an “Account”) by supplying a unique user identification name and password (“Business User ID”) to Trainerize. You must ensure that your Business User ID is not shared, and is kept confidential. You are responsible for any and all activity occurring under your Business User ID. You will promptly notify Trainerize of any actual or suspected unauthorized use of the Service. Trainerize may require that a Business User ID be replaced at any time. That Business User ID, together with any or other information you provide, including but not limited to your social media profiles and location, will form your “Profile Information” and allow you to access your Account. You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information. You represent and warrant to Trainerize that you have not misrepresented any Profile Information. We do not provide backups of your Profile Information, and you are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Service.
Once you sign up for an Account, you will have the ability to add employees or other personnel (each, an “Authorized Personnel”) to your Account through the authentication process provided as part of the Service. As part of the authentication process, End Users that you wish to be associated with your Account will be provided with a unique invitation link that they must use to become Authorized Personnel affiliated with your Account. You are solely responsible for all activities of each Authorized Personnel that occur under or in connection with your Account or the End Users you or your Authorized Personnel train or manage.
Unless otherwise agreed to between the parties in writing, Trainerize deems the person under whose name appears on the credit or charge card that pays the charges for the Service to be the owner and controller of the Business User ID, Profile Information and Account for all purposes under this Agreement. If a corporate or other organization’s name appears on the credit or charge card, that corporation or organization is deemed to be the owner. ;If any dispute arises as to who owns or controls a Business User ID Profile Information, or Account, the credit or charge card we have on file for the Account will continue to be charged in accordance with this Agreement, and you will be responsible to continue to pay for the Service until Trainerize receives written confirmation from the Account email address confirming a change in ownership and control of the Account.
In the case of any newsletter or other marketing initiatives, you can withdraw your consent to receiving those communications and unsubscribe to any Trainerize subscriptions at any time by clicking “Unsubscribe” at the bottom of such communication or by contacting [email protected]. Doing so may have a material impact on our ability to provide any Service to you, and we are not responsible if you do so.
Fees and Payments
Current pricing for the Service will be made available to you at or prior to the time you elect to subscribe for the Service via the Site or Service or, if applicable, through an online or printed order form to be executed by you. If you have any questions regarding pricing, please contact us at [email protected]. Unless otherwise agreed to by Trainerize, fees will be billed in advance for each year and are non-refundable. There will be no refunds or credits for partial months of service or for periods in which your Account remains open but you do not use the Service. All overdue Fees shall accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and you shall reimburse Trainerize for all expenses (including reasonable attorneys’ fees) incurred by Trainerize to collect any amount that is not paid when due.
We reserve the right to modify our billing rates at any time upon 30 days written notice by posting such fee changes to the Site or through email notification to you. You will be liable to pay such modified billing rates.
Trainerize does not process payments on its own. The payment services that facilitate payments in connection with this Agreement are provided by Stripe Payments Canada Ltd., Recurly, Inc., Bambora Inc and their respective affiliates (each a “Payment Processor” and collectively, the “Payment Processors”). You are required to provide your credit card or bank account details to us when registering for an Account. By doing so, you authorize us to provide this information to the Payment Processors. You acknowledge and agree that each Payment Processor’s terms will govern your agreement and interactions with that Payment Processor and that our terms and policies do not govern with regard to the processing of your payment by any of the Payment Processors, and that we have no liability arising from your use of or access to any Payment Processor’s services. We are not responsible for any errors by any Payment Processor. You should review the applicable terms and policies of each Payment Processor, including their privacy and data gathering practices, available at the following websites:
Stripe Payments Canada Ltd.: https://stripe.com/en-ca/privacy
Recurly, Inc.: https://www.recurly.com/legal/terms/
Bambora Inc.: https://www.bambora.com/terms-and-conditions/
Term and Renewal
Subject to your payment of applicable fees, we will provide the Service to you for the period of time that you have paid for such Service (the “Subscription Period”).
At the end of the Subscription Period, your subscription will automatically renew for an additional Subscription Period until explicitly cancelled by you as described in the “Cancellation and Termination” section below.
If you purchase any fee-based Service, you agree that we or our Payment Processors are authorized to charge you (i) a fee for any applicable Service for which you have subscribed, billed on a basis of the Subscription Period, (ii) any other fees for Service you may purchase, (iii) any charges for use of the Service in excess of the usage or other limits placed on your use of the Service (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance), (iv) any applicable taxes in connection with your use of the Service to the credit or charge card you provide and to reimburse us for all collection costs and interest for any overdue amounts, and (v) any and all applicable currency conversion charges. If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.
Trial Program
From time to time and at our sole discretion, we may offer free or discounted pricing for you to evaluate the use of the current Service that are generally available to customers for a limited period of time (the “Trial Program”). If you register for a Trial Program, you may elect to purchase the full Service within the term of the Trial Program specified by us (the “Trial Period”) and in this case you will be able to use the Service with more than one End User. Once the Trial Period has expired, you agree that our normal billing rates will apply. You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of End Users and usage) we impose in connection with any Trial Program. You may not sign-up for multiple Accounts in order to receive additional benefits under any Trial Programs. We may terminate or suspend any Trial Program at any time without notice or liability and in our sole discretion. We reserve the right to charge or charge more for any Service or product offered through any Trial Program.
Taxes
You take full responsibility for all taxes and fees of any nature associated with the Service, including any sales tax related to any purchase or sale of services or goods under this Agreement. When purchasing or selling services or goods under this Agreement, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority. Any tools provided as Materials or in connection with the Service indicating estimated taxes due are for illustration purposes only. You take full responsibility for all taxes and fees of any nature associated with the Service, including any sales tax related to the purchase or sale of services or goods under this Agreement.
Smart Meal Planner
Included as part of the Service is a tool that can be used to generate meal plans and healthy eating recommendations by or on behalf of End Users (the “Smart Meal Planner”). If you have elected to utilize the Smart Meal Planner to provide meal planning, healthy eating recommendations or other nutrition services to End Users, you acknowledge and agree that:
the Smart Meal Planner is not a diagnostic tool or medical device;
the Smart Meal Planner should not be used for the diagnosis, prevention, monitoring, treatment, alleviation, cure or mitigation of any disease, health or medical condition, injury, disability or physiological or pathological process or state;
any recommendations provided through the Smart Meal Planner are not intended to be a substitute for professional medical advice, diagnosis or treatment and you should (i) review and consider the appropriateness of such recommendations before providing them to or implementing them for any End User; and (ii) encourage End Users to discuss questions about any medical condition or health concern with their physician or other suitable medical professional;
if an End User provides any information related to a particular medical condition, you shall have an affirmative obligation to provide a disclaimer clearly stating that (i) the Smart Meal Planner is not for the purpose of managing or treating the End User’s disclosed medical condition; (ii) based on your qualifications, training or experience you are not in a position to provide advise addressing any medical condition; and (iii) the End User should consult with a medical professional;
before using the Smart Meal Planner, you should seek legal advice to determine whether you are permitted to utilize and provide such services in the jurisdictions in which you conduct business. Trainerize is not responsible for, and you are solely responsible and liable for, your compliance with applicable laws, including without limitation those governing the provision of dietitian and nutrition services;
in marketing, promoting and providing your products and services and the Smart Meal Planner, you are not permitted to provide or suggest that Trainerize provides any representations, warranties or guarantees regarding the Smart Meal Planner, or otherwise misrepresent the stated purpose for and intended use of the Smart Meal Planner;
you are solely responsible and liable for any representations, warranties or guaranties you make to any End User, including without limitation those related to your title, qualifications, experience or any other information which may either be regulated by state or federal law in the applicable jurisdiction, or otherwise harmful to the contractual rights of any End User who may have relied on such representations, warranties or guaranties;
you are solely responsible and liable for the information you input into the Smart Meal Planner, and you understand that the accuracy, suitability and safety of the meal plans and recommendations generated by the Smart Meal Planner may be negatively impacted if the information you input is inaccurate or misleading; and
Trainerize makes no representations, warranties or guarantees regarding the accuracy of caloric and other food nutritional information provided through the Smart Meal Planner. All such information is sourced from third party food vendors and restaurants. Trainerize cannot control the quality, quantity or consistency of foods served and sold by such third parties.
Integrated Payments Service
If you have elected to utilize the Service to process payments related to goods or services offered by you to End Users through the Service (the “Integrated Payments Service”), you will receive payment through the Payment Processors for any charges actually paid by an End User related to such goods and services (“Business User Payments”), less any commissions, transaction fees or other deductions charged by the Payment Processors and Trainerize, and you authorize Trainerize to have its Payment Processors process all such Business User Payments.
If you utilize the Integrated Payments Service, you acknowledge and agree that:
Business User Payments shall not accrue interest and will be net of any amounts that Trainerize or the Payment Processor is required to withhold by law;
Trainerize is not responsible or liable for any failure or error made by any Payment Processor in connection with the Integrated Payments Service, or for any failure by an End User to make payment to you in connection with the Integrated Payments Service;
you will be responsible for all currency conversion charges and responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on any Business User Payments, and you will defend, indemnify and hold harmless Trainerize and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from any failure by you to collect and remit such charges and amounts;
you may only use the Integrated Payments Service for legitimate transactions with End Users;
you are solely responsible for your relationship with End Users and the products and services you publicize, offer and sell, including without limitation the nature and quality of such products and services, and delivery, support, refunds, returns and any other ancillary services you provide to End Users;
when using the Integrated Payments Service you must (1) accurately communicate, and not misrepresent, the nature of your products or services and the amount of the charge or transaction in the appropriate currency, (2) provide End Users a meaningful way to contact you in the event that the product or service is not provided as described, and (3) not use the Service to sell products or services in a manner that is unfair or deceptive, exposes End Users to unreasonable risks or does not disclose material terms of a purchase in advance;
you will maintain a fair return, refund, cancellation, or adjustment policy, and clearly explain the process by which End Users can receive a refund;
you are solely responsible for determining whether a transaction initiated by an End User is erroneous (such as an End User purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases). If you are unsure if a transaction is erroneous or suspicious, you agree to research the transaction and, if necessary, contact the End User before fulfilling or completing the transaction;
you are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Service;
you are solely responsible for providing support to End Users regarding transaction receipts, product or service delivery, support, returns, refunds and any other issues related to your products and services and business activities; and
Trainerize is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund or reversal, are submitted without authorization or in error or violate any applicable laws.
If you utilize the Integrated Payments Service, you represent, warrant and covenant to Trainerize that: (i) any information you provide us about your business, products or services is accurate and complete; (ii) any Business User Payments represent a transaction for permitted products or services, and any related information accurately describes the transaction; (iii) you will fulfill all of your obligations to End Users and will resolve all disputes with them; (iv) you will comply with all laws applicable to your business and use of the Service; and (v) you will not use the Integrated Payments Service (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Integrated Payments Service.
Submission of Content
The Site and the Service available thereon enable you to provide or upload content, including but not limited to messages, materials, data, text, music, sound, photos, videos, graphics, applications, code and other information or content (collectively, “Content”), to Trainerize for the purpose of providing the Service or as otherwise permitted under this Agreement. You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.
Trainerize will use Content you upload solely in connection with providing the Service to you, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or the Service, you grant to Trainerize a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Service to you. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Service.
You acknowledge and agree that your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Service, and as such may be accessible to others including without limitation to: (i) your agents; (ii) End Users; (iii) third party service providers and their agents; (iv) any other person to whom any of the foregoing persons have granted access to your Content and (v) our affiliates in accordance with the Privacy Policy Trainerize shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Service is not shared (unless you select otherwise), but you acknowledge and agree that Trainerize cannot and does not guarantee any confidentiality with respect to your Content whatsoever.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Trainerize or Trainerize’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that Trainerize is not responsible for any violations of any third party intellectual property rights, privacy rights, publicity rights, trademark rights, contract rights or any other rights of any person or entity in any Content that you submit to Trainerize. You agree to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by you to the Site.
Monitoring
Trainerize may, but has no obligation to, monitor Content on the Site, or any website created using our Service. You consent to such monitoring. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Trainerize or its customers, or operate the Site or Service properly, or improve the Site or Service. Trainerize, in its sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement, including, but not limited to the Privacy Policy.
Trademarks and Rights of Publicity
Trainerize responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.
Please be aware that celebrities, and other individuals, may have a "right of publicity," which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. If you use a celebrity name or likeness on the Service and you do not have the celebrity's permission, you risk infringing the celebrity’s rights, and depending on the circumstances, this may be true for non-celebrities as well.
If you believe your rights have been infringed on the Service, please submit a notification of infringement to our agent listed in the Section entitled “Copyright and Trademark Compliance and Complaints” below. To submit a notification, you must be the trademark owner or the individual featured in a manner violating your rights of publicity, or an authorized agent of the trademark owner or featured individual.
When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office or other national trademark office. Please also provide details pertaining to where within the Service the infringement is occurring.
Copyright and Trademark Compliance and Complaints
If you are an intellectual property owner or an agent thereof and believe that either (1) any Content on the Service or (2) any material or activity contained on an online location to which the Service have referred or linked users, infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):
a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works on the Service;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);
information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
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 the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification pursuant to the DMCA should be submitted to:
Phone: 1-844-625-1155
Email: [email protected]
You acknowledge that if you fail to comply with all of the requirements of this “Copyright and Trademark Compliance and Complaints” Section, your DMCA notice may not be valid. Emails or notices sent to Trainerize without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
Acceptable Use and Conduct:
You agree that you will not publish or make available any Content that, or use the Site or Service in a manner that:
infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
is harmful to minors in any way;
is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Trainerize;
impersonates a Trainerize employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Site or Service or a portion thereof without proper authorization;
interferes or attempts to interfere with the proper working of the Site or Service or prevents others from using the Site or Service, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects other persons’ ability to use the Site or Service;
uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or Service or the content contained therein;
facilitates the unlawful distribution of copyrighted Content;
except as expressly permitted by Trainerize, licenses, sublicenses, rents or leases the Service to third parties, or uses the Service for third party training, commercial time-sharing or service bureau use;
includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Service to users;
constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
stalks or otherwise harasses anyone on the Site or using the Service or with information obtained from the Site or Service;
collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Site or Service for the purposes of automating logins to the Site;
attempts to gain unauthorized access to the computer systems of Trainerize or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Service;
posts adult or pornographic Content;
decompiles or reverse engineers or attempts to access the source code of the software underlying the Site, the Service or any other Trainerize technology;
copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Site or Service;
accesses the Site or Service for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site or Service;
accesses the Site or Service for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
accesses the Site to upload any Content or computer code for the purposes of: (i) causing a breach or override of security to the Site or Service; (ii) interfering with the proper working, functionality or performance of the Site or Service; or (iii) preventing others from accessing or using the Site or Service.
Disclaimer of Warranties
YOUR USE OF THE SITE OR SERVICE AND ALL CONTENT FORMING PART OF OR RELATED TO THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TRAINERIZE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE OR SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.
TRAINERIZE DISCLAIMS ANY WARRANTY THAT THE SITE, THE SERVICE OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME TRAINERIZE MAY REMOVE THE SITE OR CEASE PROVIDING THE SERVICE FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU, AND WITHOUT INCURRING ANY LIABILITY TO YOU OR ANY THIRD PARTY. YOUR ACCESS AND USE OF THE SITE AND THE SERVICE MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR SERVICE OR OTHER ACTIONS THAT TRAINERIZE , IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. TRAINERIZE MAKES NO GUARANTEE REGARDING: (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE SITE OR SERVICE; OR (B) THE COMPATIBILITY OF ANY SOFTWARE, HARDWARE OR CONTENT WITH THE SITE OR SERVICE.
TRAINERIZE IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY TRAINERIZE, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, ANY THIRD PARTY SITES OR SERVICES ACCESSED THROUGH LINKS ON OUR SITE OR SERVICES, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY TRAINERIZE.
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR CONTENT IS COMPATIBLE WITH THE SITE AND SERVICE. TRAINERIZE DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES OR OTHER USERS OF THE SITE AND SERVICE AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRAINERIZE OR THROUGH OR FROM THE SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE SITE AND SERVICE ARE OFFERED AND CONTROLLED BY TRAINERIZE FROM ITS FACILITIES IN CANADA. TRAINERIZE MAKES NO REPRESENTATIONS THAT THE SITE OR SERVICE ARE APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OTHER THAN CANADA AND THE UNITED STATES. THOSE WHO ACCESS OR USE THE SITE OR SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
Third Party Sites and Content
The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under Trainerize’s control, and you acknowledge that Trainerize is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Trainerize or any association with its operators. You further acknowledge and agree that Trainerize will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
Without limiting the foregoing, the Service utilizes certain YouTube API services, and by using the Service you are also agreeing to be bound by the YouTube Terms of Service (found at https://www.youtube.com/t/terms), as may be amended from time to time.
Exclusive Remedy and Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, WILL TRAINERIZE OR ITS OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICE (EVEN IF TRAINERIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE SITE OR SERVICE, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT. TRAINERIZE’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS UNDER THIS AGREEMENT IS LIMITED TO THE GREATER OF: (A) CDN$100; AND (B) THE TOTAL AMOUNTS YOU PAID TO TRAINERIZE IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, TRAINERIZE’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION WILL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN TO THE CONTRARY, TRAINERIZE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF IN ANY WAY WITH RESPECT TO A TRIAL PROGRAM OR YOUR PROVISION OF AN INDIVIDUAL’S PERSONAL INFORMATION TO TRAINERIZE OR THROUGH THE SERVICE. YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS WILL APPLY WITH RESPECT TO THIRD PARTY LIABILITY OF ANY KIND.
THE FOREGOING LIMITATIONS WILL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICE PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN TRAINERIZE AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SITE OR RECEIVED BY YOU ON ANY THIRD PARTY SITES. YOU ALSO AGREE THAT TRAINERIZE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
Trainerize will have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any modification, suspension or discontinuance of the Site and/or the Service.
You expressly waive all rights you may have under Section 1542 of the California Civil Code, which states: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Indemnity
You agree to indemnify, defend, and hold harmless Trainerize, and its subsidiaries, affiliates, co-branders, all third party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (together, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Site or the Service, including but without limitation in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Service and any Content, including without limitation your Profile Information, any Content you make available through the Site or Service, and any third party Content forming part of the Site; (b) your violation or alleged violation of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein. Trainerize reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Trainerize and you agree to cooperate with Trainerize’s defense of these Claims. You agree not to settle any matter without the prior written consent of Trainerize. Trainerize will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
Cancellation and Termination
You may cancel your Account at any time through the interface provided as part of the Service. Cancellation must be issued via the interface. This is the only way to cancel your Account and you will not be provided with a refund, in whole or in part, of any pre-paid amount. Email requests (from email accounts other than your Trainerize email account) or phone requests to cancel your Account may not be accepted.
You will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the then current Subscription Period in which you cancelled your Account. Trainerize is under no obligation to store your Content and may delete your Account and your Content immediately upon cancellation.
Trainerize reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. Trainerize reserves the right to modify, suspend or discontinue the Site and/or Service, or any portion thereof, at any time and for any reason, with or without notice.
Data Usage and Charges
The Service may use information and data transmission networks operated by third parties to send data, information and Content from a computer or device to Trainerize’s servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third party operators, you may incur charges from such third party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Service and/or as a result of data, information and Content submitted or received by your computer or device through the Service.
CCPA Required Terms
As between you and Trainerize, and to the extent applicable, it is acknowledged and agreed that Trainerize is a "service provider" as that term is defined in the California Consumer Protection Act of 2018, as amended from time to time (“CCPA”), and shall not:
sell any information about an identifiable individual (“Personal Information”) provided by you;
retain, use, or disclose any Personal Information provided by you for any purpose other than for performing its obligations under this Agreement or as otherwise permitted by the CCPA or required by law, or, if applicable, as authorized in writing by you; or
retain, use, or disclose any Personal Information provided by you outside of the direct business relationship between Trainerize and you, unless otherwise permitted by the CCPA or required by law, or, if applicable, as authorized in writing by you.
Disputes
BY AGREEING TO THIS AGREEMENT, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST TRAINERIZE ON AN INDIVIDUAL BASIS IN ARBITRATION AS SET FORTH IN THIS SECTION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST TRAINERIZE, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION BROUGHT AGAINST TRAINERIZE BY SOMEONE ELSE.
YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY.
YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING, BUT NOT LIMITED TO, CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
All disputes arising out of or in connection with this Agreement, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration:
if you are a US resident, under the Streamlined Arbitration Rules and Procedures of JAMS, and the place of arbitration shall be Seattle, Washington; and
if you are a resident of any other jurisdiction, under the applicable Rules of Procedure of the Vancouver International Arbitration Centre, and the place of arbitration shall be Vancouver, British Columbia, Canada.
Each party will cover its own fees and costs associated with the arbitration proceedings; however, if the arbitrator finds that you cannot afford to pay the fees and costs reasonably associated with the arbitration proceedings, we will pay them for you.
The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that they will not appeal any arbitration decision to any court.
If there is any dispute between you and Trainerize about or involving this Agreement, the Site or the Service:
if you are a US resident, you hereby agree that the dispute will be governed by and construed in accordance with the laws of the State of Washington, or US federal law to the extent applicable, without regard to conflict of law provisions; and
if you are a resident of any other jurisdiction, you hereby agree that the dispute will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada and the federal laws of Canada applicable therein, without regard to conflict of law provisions.
Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that this Agreement specifically enforceable by us through injunctive relief and other equitable remedies without proof of monetary damages.
No action, regardless of form, which arises from or is related in any way whatsoever to this Agreement, may be commenced by you more than twelve (12) months after such cause of action accrues.
Miscellaneous
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by Trainerize without restriction.
You agree that if Trainerize does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Trainerize has the benefit of under any applicable law), this will not be taken to be a formal waiver of Trainerize’s rights and that those rights or remedies will still be available to Trainerize.;
The sections of “Intellectual Property Rights”, “Taxes”, “Submission of Content”, “Disclaimer of Warranties”, “Third Party Sites and Content”, “Exclusive Remedy and Limitation of Liability”, “Indemnity”, “Cancellation and Termination”, “CCPA Required Terms”, “Disputes” and “Miscellaneous” and any other provisions of this Agreement that are intended to survive termination or expiry of this Agreement will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
This Agreement is the entire agreement between us related to the subject matter in this Agreement This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned “electronic” agreement or rely on such an unsigned agreement.
Contacting Trainerize
You may contact Trainerize:
by email at [email protected];
by telephone at 1-844-625-1155.
WHO WE ARE
We are a limited company registered in British Columbia under registered company number BC1264977, and with our registered office at 2900 - 550 Burrard Street Vancouver, BC V6C 0A3e.
These Terms of Service (this "Agreement") set forth the terms and conditions that apply to the access and use of the website located at www.trainerize.com and the Trainerize mobile software application (collectively, the "Site"), each owned and operated by TSR Gym Technik Ltd. and its affiliates ("Trainerize", "we", "our" or "us"), and the services available thereon, including without limitation the services described in the ‘Service Description’ Clause below (the "Service").
You may contact Trainerize by email at [email protected].
You may also reach us by telephone at 1-844-625-1155, but you may be charged additional fees by your network operator. We are not liable to you for any such charges.
WHO THESE TERMS APPLY TO
If you have registered to use the Service as a trainer, gym, coach or other fitness or nutrition professional, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training, meal planning or other related services to one or more End Users, you are a "Business User" and you agree to be bound by this Agreement.
This Agreement applies to Business Users in the United Kingdom and the European Union only. If you are based elsewhere, then these terms and conditions do not apply to you - please navigate back to where you can re-select your jurisdiction.
If you have registered to use the Service for the purpose of accessing, obtaining or otherwise acquiring fitness training, meal planning or other related services from a trainer, gym, coach or other fitness or nutrition professional, you are an "End User”, and this Agreement does not apply to you. The Terms of Service applicable to End Users are available here: https://www.trainerize.com/endUserTerms.
This Agreement is made only in the English language.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "you" or "your" will refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not place any order for the Service on the Site and you may not use the Service.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
CHANGES TO THESE TERMS
We may make changes to this Agreement from time to time (this may be, for example, to reflect changes in law or commercial practice, or to deal with additional features that we introduce). Subject to Clause 3.2, if you have registered an account with us, we will provide you with at least 15 days' advance notice of any such changes.
Trainerize will not be required to provide 15 days’ advance notice of changes to this Agreement if Trainerize:
is subject to a legal or regulatory obligation which requires Trainerize to change this Agreement in a manner which does not allow it to respect such 15 day notice period; or
has to change this Agreement in exceptional circumstances to address an unforeseen and imminent danger related to defending Trainerize, the Site, the Service, the platform, End Users and/or Business Users from fraud, malware, spam, data breaches or other cybersecurity risks.
Unless the amendments must take effect sooner in accordance with Clause 3.2, the amendments will take effect 15 days after the date on which the amended version is posted on the Site (or longer as expressly set out by Trainerize). Prior to that date, the previous version of this Agreement will continue to apply. If you do not cease using the Site and/or Service during that time, then by your continued use, you are considered to have accepted the proposed amendments. If you submit new services to the Site after you have been notified of the proposed amendments, then you shall be considered to have unambiguously waived the 15-day notice period, and the amendments may be brought into effect earlier.
If you disagree with any amendments, you may terminate this Agreement by contacting us before the expiry of the notice period. If you choose to terminate this Agreement in this context, such termination shall take effect within 15 days from the receipt of our notice to you. There is no penalty for terminating in these circumstances.
Please check this Agreement regularly to ensure that you understand the terms and conditions that apply at the time that you access and use the Site and/or Service. You can check the "Last Updated" date at the top of this page to see when the latest version was updated.
SERVICE DESCRIPTION
The Service is a platform that facilitates communications, interactions, and transactions between Business Users and End Users for the purpose of enabling Business Users to monitor, coach, train and communicate with End Users, and enabling End Users to access workout and meal plans, track their progress, access their appointments and classes, buy products, and more. Trainerize does not provide or perform training or coaching. Trainerize is not responsible for any interactions between Business Users and End Users that are facilitated through or in connection with the Service, nor does Trainerize have any control over the quality, timing, provision or failure to provide, or any aspect whatsoever relating to the provision of coaching, training, workouts, meal plans, progress tracking, appointments, classes, product purchases and other services provided by Business Users to End Users.
The Service may use information and data transmission networks operated by third parties to send data, information and content from a computer or device to Trainerize’s servers, and to serve data, information and content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, that you may incur as a result of the usage of the Service and/or as a result of data, information and content submitted or received by your computer or device through the Service.
Trainerize does not guarantee that the Site and/or Service will be totally secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and platform in order to access the Site and/or Service and Trainerize recommends that you use your own virus protection software.
In supplying the Service to you, Trainerize shall use reasonable care and skill and comply with all applicable law. We shall not be liable under this Agreement if, as a result of such compliance, we are in breach of any of our obligations under this Agreement. The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
Trainerize makes no guarantee regarding:
the Site and/or Service being uninterrupted or error free;
the amount, timing and delivery of any clicks or impressions with respect to any content (including third-party content) or advertising on the Site or Service;
the compatibility of any software, hardware or content with the Site; or
the volume of interactions with End Users (if any) that you may engage in via the Site or Service.
Smart Meal Planner
Included as part of the Service is a tool that can be used to generate meal plans and healthy eating recommendations by or on behalf of End Users (the "Smart Meal Planner"). If you have elected to utilize the Smart Meal Planner to provide meal planning, healthy eating recommendations or other nutrition services to End Users, you acknowledge and agree that:
the Smart Meal Planner is not a diagnostic tool or medical device;
the Smart Meal Planner should not be used for the diagnosis, prevention, monitoring, treatment, alleviation, cure or mitigation of any disease, health or medical condition, injury, disability or physiological or pathological process or state;
any recommendations provided through the Smart Meal Planner are not intended to be a substitute for professional medical advice, diagnosis or treatment and you should:
review and consider the appropriateness of such recommendations before providing them to or implementing them for any End User; and
encourage End Users to discuss questions about any medical condition or health concern with their physician or other suitable medical professional;
if an End User provides any information related to a particular medical condition, you shall have an affirmative obligation to provide a disclaimer clearly stating that:
the Smart Meal Planner is not intended or designed for the purpose of managing or treating the End User’s disclosed medical condition;
based on your qualifications, training or experience you are not in a position to provide advice addressing any medical condition; and
the End User should consult with a medical professional;
before using the Smart Meal Planner, you should seek legal advice to determine whether you are permitted to utilize and provide such services in the jurisdictions in which you conduct business. Trainerize is not responsible for, and you are solely responsible and liable for, your compliance with applicable laws, including without limitation those governing the provision of dietitian and nutrition services;
in marketing, promoting and providing your products and services and the Smart Meal Planner, you are not permitted to provide or suggest that Trainerize provides any representations, warranties or guarantees regarding the Smart Meal Planner, or otherwise misrepresent the stated purpose for and intended use of the Smart Meal Planner;
you are solely responsible and liable for any representations, warranties or guaranties you make to any End User, including without limitation those related to your title, qualifications, experience or any other information which may be regulated by law in the applicable jurisdiction, or is otherwise harmful to the contractual rights of any End User who may have relied on such representations, warranties or guarantees; and
you are solely responsible and liable for the information you input into the Smart Meal Planner, and you understand that the accuracy, suitability and safety of the meal plans and recommendations generated by the Smart Meal Planer may be negatively impacted if the information that you input is inaccurate or misleading.
Trainerize makes no representations, warranties or guarantees regarding the accuracy of caloric and other food nutritional information provided through the Smart Meal Planner or otherwise provided through the Site, the platform or the Service. All such information is sourced from third-party food vendors and restaurants. Trainerize cannot control the quality, quantity or consistency of foods served and sold by such third parties.
Trial Program
From time to time and at our sole discretion, we may offer free or discounted pricing for you to evaluate the use of the current Service, that are generally available to customers for a limited period of time (the "Trial Program").
If you register for a Trial Program, you may elect to purchase the full Service within the term of the Trial Program specified by us (the "Trial Period") and in this case you will be able to use the Service with more than one End User. Instructions on how you can do this would be offered to you during the Trial Period and, if you do purchase the full subscription, you will enter into a new contract of sale with us in respect of the full Service and the terms and conditions set out in this Agreement will apply to that contract of sale. You agree that our normal billing rates will apply at that time.
If you do not elect to purchase the full service during the Trial Period, the Trial Period will simply expire at the end of the agreed Trial Period and at that time your access to the Service will be terminated.
You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of End Users and usage) we impose in connection with any Trial Program and that are communicated to you before you choose to enter into the Trial Program. You may not sign-up for multiple accounts in order to receive additional benefits under any Trial Programs. We may terminate or suspend any Trial Program at any time without notice or liability and in our sole discretion. We reserve the right to charge or charge more for any Service or product offered through any Trial Program.
Ranking
Where End Users use the "Find a Trainer" search function on the Site, Business Users will be listed in accordance with:
the search category selected by the End User (for example, yoga, bootcamp or group training etc.);
physical proximity to the End User, starting with the nearest (where no physical location data is available, we use IP geolocation and browser location data, where available); and
the degree of information and level of detail provided for in the relevant Business User’s profile, starting with the highest degree of detail.
REGISTERING YOUR ACCOUNT AND PURCHASING THE SERVICE
In order to purchase and/or use the Service, you must setup an account (an "Account") by supplying an email address and password ("Business User ID") to Trainerize. You must ensure that your Business User ID is not shared with any other person and is kept confidential. You are responsible for any and all activity occurring under your Business User ID. You will promptly notify Trainerize of any actual or suspected unauthorised use of the Service. Trainerize may require that a Business User ID be replaced at any time. That Business User ID, together with any other user information you provide, including but not limited to your social media profiles and location, will form your "Profile Information" and allow you to access your Account.
You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information. You represent and warrant to Trainerize that you have not misrepresented any Profile Information.
We do not provide backups of your Profile Information, and you are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Service.
Trainerize may need to ask a Business User to complete additional verification before it allows the Business User to open an Account.
Once you have signed up for an Account, you may place an order for the Service. To place an order for the Service, you must follow these steps:
log in to your Account;
follow the order procedure in the click-through checkout process;
check your details and correct any informational errors before submitting it - you are responsible for ensuring that your order is complete and accurate;
complete the requested information (this may include your name, email address, billing address, and payment method); and
press "Subscribe" or "Pay Now", as applicable, to finalise your order.
Your order is an offer by you to enter into a subscription for the Service with us. We will confirm our receipt of your order by providing you with an order acknowledgement through the Service. This acknowledgement does not constitute our acceptance of your order. If we accept your order, we will send a confirmation email to you confirming this. A legally binding contract of sale is concluded between you and Trainerize when the confirmation email is sent. At that stage, these Terms of Service are incorporated into that contract of sale. If we do not accept your order, we will notify you of this. We are under no obligation to accept any order, and we do not have to provide reasons for any non-acceptance. We recommend that you print and/or otherwise store a copy of this contract of sale as we do not file or make copies accessible to you. Following conclusion of your order, we shall make the Service available to you as set out in this Agreement.
Once you sign up for an Account, and have placed an order for the Service, you will have the ability to add employees or other personnel (each, an "Authorised Personnel") to your Account through the authentication process provided as part of the Service.
As part of the authentication process, Authorised Personnel that you wish to be associated with your Account will be provided with a unique invitation link that they must use to become Authorised Personnel affiliated with your Account.
You are solely responsible for all activities of each Authorised Personnel that occur under or in connection with your Account or the End Users you or your Authorised Personnel train or manage.
Unless otherwise agreed to between the parties in writing, Trainerize deems the person under whose name appears on the credit or charge card that pays the charges for the Service to be the owner and controller of the Business User ID, Profile Information and Account for all purposes under this Agreement. If a corporate or other organisation’s name appears on the credit or charge card, that corporation or organisation is deemed to be the owner. If any dispute arises as to who owns or controls a Business User ID Profile Information, or Account, the credit or charge card we have on file for the Account will continue to be charged in accordance with this Agreement, and you will be responsible to continue to pay for the Service until Trainerize receives written confirmation from the Account email address confirming a change in ownership and control of the Account.
You agree:
to co-operate with Trainerize in all matters relating to the Service (including but not limited to reasonable instructions of Trainerize from time to time);
to provide to Trainerize (and/or its authorised agents, subcontractors, consultants and employees) access to your data, records, staff or premises as reasonably required by Trainerize to perform the Service in a timely manner and at no charge to Trainerize;
not to use the Site, the Service, or your Account in any way that breaches this Agreement or any applicable local, national or international law or regulation;
not to infringe our intellectual property rights or those of any third-party in relation to your use of the Account;
not to use your Account for unauthorised mass-communication such as spam or junk mail;
not to misuse the Site and/or Service by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;
not to attempt to gain unauthorised access to the Site and/or Service, the server on which the Site and/or Service is/are stored or any server, computer or database connected to the Site and/or Service;
not to attack the Site and/or Service via a denial-of-service attack or a distributed denial-of service attack;
not to modify, decompile or reverse engineer any software supplied as part of, or in connection with, the Site and/or Service;
not to use the Site and/or Service by automated means or otherwise for the purposes of scraping, extracting or otherwise obtaining any material from Trainerize for use within a third-party website or application;
not to collect or harvest any information or data from the Trainerize systems or attempt to decipher any transmission to or from the servers running the Site and/or Service;
to hold any necessary licenses, certifications and/or qualifications that are appropriate to your interactions with End Users (whether online or in-person);
not to – either by any act or omission - bring the Site and/or Service and/or Trainerize (and/or any of the Trainerize’s group companies or affiliates) into disrepute;
not to use the Site and/or Service in any way that is contrary to Trainerize’s public image, goodwill or reputation;
not to express or imply that any of your statements, activities or causes are endorsed by Trainerize without Trainerize’s prior written consent in each instance;
not to test or develop any third-party integrations with the Site and/or Service without Trainerize’s express written permission;
not to “frame” or “mirror” any part of the Site and/or Service without Trainerize’s prior written consent;
not to execute any form of network monitoring or run a network analyser or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between or with the servers of the Site and/or Service;
not to copy, or otherwise reproduce or re-sell any part of the Site and/or Service unless expressly permitted to do so in this Agreement;
not to access, query or search the Site and/or Service with any automated system, other than through Trainerize’s published interfaces;
not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Site and/or Service;
not to make alterations to, or modifications of, the whole or any part of the Site and/or Service, or permit the Site and/or Service or any part of them to be combined with, or become incorporated in, any other programs;
not to circumvent any technical measures Trainerize uses to provide and/or secure the Site and/or Service;
not to attempt to gain unauthorised access to the computer systems of Trainerize or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Service;
not to decompile or reverse engineer or attempt to access the source code of the software underlying the Site, the Service or any other Trainerize technology;
not to copy, archive, store, reproduce, rearrange, modify, download, upload, create derivative works from, display, perform, publish, distribute, redistribute, or disseminate all or any part of the Site or Service;
not to access the Site or Service for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site or Service;
not to access the Site or Service for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
not to access the Site to upload any Content or computer code for the purposes of:
causing a breach or override of security to the Site or Service;
interfering with the proper working, functionality or performance of the Site or Service; or
preventing others from accessing or using the Site or Service; and
not to create multiple accounts to evade punishment or avoid restrictions.
By breaching Clause 5.11, you may also commit criminal offences. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to access or use the Site and/or Service will cease immediately.
TERM AND RENEWAL
We will provide the Service to you on and from the date on which we confirm our acceptance of your order and take payment for a monthly or annual subscription period (the "Initial Subscription Period"). After the expiry of the Initial Subscription Period, this Agreement shall automatically renew for subsequent renewal periods of one month or 12 months, depending on the Initial Subscription Period chosen (each, a "Renewal Period") unless and until this Agreement is terminated in accordance with its terms and in particular as described in the ‘Cancellation and Termination’ Clause below.
Upon the expiry of the current period (whether the Initial Subscription Period, or any subsequent Renewal Period), you authorise us to take automatic payment in respect of the subsequent Renewal Period, as set out in the ‘Fees and Payment Processors’ Clause below.
You agree that we or our Payment Processors are authorised to charge you:
a fee for any applicable Service for which you have subscribed, billed on the basis of the subscription period;
any other fees for Services you may purchase;
any charges for use of the Service in excess of the usage or other limits placed on your use of the Service (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance);
any applicable taxes in connection with your use of the Service to the credit or charge card you provide (and you agree to reimburse us for all collection costs and interest for any overdue amounts); and
any and all applicable currency conversion charges.
If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your Account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.
YOUR RELATIONSHIP WITH END USERS
You are required to enter into a separate, direct and legally binding contract with each and every End User that you interact with via the Site. If you elect to interact with End Users in connection with the Service, you should enter into a contract with each such End User and you hereby represent and warrant to us that you have obtained all rights and consents necessary from the End User to use their content submitted through the Service as intended under the Service. Trainerize is not a party to (and has no obligations, responsibilities or liabilities whatsoever under) the contract between a Business User and an End User. Every contract between a Business User and an End User must be fully compliant with all applicable laws and with Trainerize’s Fair Contracting Policy which can be accessed here.
Every interaction that you have with an End User, whether online or offline, must be fully compliant with any and all applicable laws. When interacting in-person, this may involve compliance with applicable health and safety regulations.
You are solely responsible for:
your relationship with End Users and the products and services you publicise, offer and sell, including without limitation the nature and quality of such products and services, and delivery, support, refunds, returns and any other ancillary services you provide to End Users;
all aspects of your transactions with End Users;
accurately communicating (and not misrepresenting) the nature of your products or services and the pricing of those;
ensuring that End Users have a meaningful way to contact you in the event that the product or service is not provided as described (or for any other reason);
your transactions with End Users are fair (and not deceptive) and do not expose End Users to unreasonable risks;
ensuring that you at all times maintain fair return, refund, cancellation, delivery, support, disputes and complaints procedures;
any losses that you incur as a result of your transactions with End Users in connection with your use of the Service; and
ensuring you conduct your interactions with End Users in accordance with the highest standards of health and safety and in accordance with good industry practice (meaning the exercise of skill, diligence, prudence and foresight that would reasonably or ordinarily be expected from a skilled and experienced individual engaged in the same or similar type of undertaking).
Trainerize gives no warranties or representations about End Users, including but not limited to:
the ability of End Users to pay for any services or products; and/or
the creditworthiness of End Users.
SUBMISSION OF CONTENT ON THE SITE
The Site and the Service available thereon enable you to provide or upload content, including but not limited to messages, materials, data, text, music, sound, photos, videos, graphics, applications, code and other information or content (collectively, "Content"). You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences (as set out in this Clause) for submitting, providing or uploading it.
Trainerize will use Content you upload solely in connection with providing the Service to you, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or Service, you grant to Trainerize a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Service to you. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Service.
You acknowledge and agree that your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Service, and as such may be accessible to others including without limitation to:
your agents;
End Users;
third-party service providers and their agents;
any other person to whom any of the foregoing persons have granted access to your Content; and
affiliates in accordance with the Privacy Policy.
Trainerize shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Service is not shared (unless you select otherwise), but you acknowledge and agree that Trainerize cannot and does not guarantee any confidentiality with respect to your Content whatsoever.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Trainerize or Trainerize’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that Trainerize is not responsible for any violations of any third-party intellectual property rights, privacy rights, publicity rights, trademark rights, contract rights or any other rights of any person or entity in any Content that you submit to Trainerize. You agree to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by you to the Site.
You agree that you will not publish or make available any Content that:
infringes, violates or misappropriates any third-party intellectual property or proprietary rights;
contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
is misleading, deceptive, fraudulent or otherwise illegal;
is libellous or defamatory;
is in any way threatening, harmful, frightening, abusive, bullying, harassing or malicious to any person or entity;
promotes or condones terrorism, violence or illegal behaviour of any kind (including but not limited to engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes);
is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Trainerize;
is invasive of another’s privacy;
impersonates a Trainerize employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity;
interferes or attempts to interfere with the proper working of the Site or Service or prevents or negatively affects others’ ability to use the Site or Service (for example because it disrupts the normal flow of dialogue with an excessive number of messages in a flooding attack);
uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or Service or the content contained therein;
facilitates the unlawful distribution of copyrighted Content;
includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Service to users;
constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Site or Service for the purposes of automating logins to the Site; or
contains obscene, offensive, adult or pornographic material.
All Business Users must consent to the monitoring of Content. Whilst Trainerize has no obligation to monitor, moderate or vet Content, we reserve the right to do so. Trainerize may remove or require you to remove Content and may disclose any information necessary or appropriate to satisfy our legal obligations, protect Trainerize or its customers, or operate the Site or Service properly, or improve the Site or Service.
If you believe your rights have been infringed on the Service, or if you would like to flag any Content that you believe to be unacceptable, please contact us at [email protected]. To assist us in investigating, please provide us with your full name and address, along with details of:
the date and time the relevant Content was posted;
where it can be found on the Site;
the email address of the person who posted it;
reasons why the Content should be removed, along with evidence for this; and
copies of any communication with the person who posted it (if any).
You must not transmit any music in connection with your use of the Site or Service unless you own and/or have obtained a license to all necessary rights in the music (e.g., including as pertains to any recorded music or musical compositions embodied in your Content).
FEES AND PAYMENT PROCESSORS
Current pricing for the Service is available at [email protected]. The prices are exclusive of Value Added Tax ("VAT"). Where VAT is payable in respect of some or all of the Service you must pay such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the charges.
Unless otherwise agreed to by Trainerize, fees will be billed in advance for each month or year (depending on your chosen billing cycle and Services ordered) and to the extent permitted by law, are non-refundable (except where stated otherwise in this Agreement). We will take your first payment upon our acceptance of your order. We will take subsequent payments by automatic payment at annual or monthly intervals (depending on your chosen billing cycle), on the date that your current subscription period expires.
You can cancel this Agreement at any time in accordance with your termination rights as set out in the ‘Cancellation and Termination’ Clause below. In order to prevent an auto-renewal payment being taken in respect of a subsequent Renewal Period, you must notify us of your intention to terminate at least 1 day before the renewal date.
Other than as required by law, there will be no refunds or credits for partial months of service or for periods in which your Account remains open but you do not use the Service.
All overdue fees shall accrue interest at the rate of 3% per annum above the HSBC Bank plc base rate, and you shall reimburse Trainerize for all expenses (including reasonable legal fees) incurred by Trainerize to collect any amount that is not paid when due.
We reserve the right to modify our billing rates at any time upon 30 days’ written notice by posting such fee changes to the Site or through email notification to you. You will be liable to pay such modified billing rates unless you choose to terminate this Agreement in accordance with your termination rights set out in the ‘Cancellation and Termination’ Clause below.
Trainerize does not process payments on its own. The payment services that facilitate payments in connection with this Agreement are provided by Stripe Payments Canada Ltd., Recurly, Inc., Bambora Inc and their respective affiliates (each a "Payment Processor" and collectively, the "Payment Processors"). You are required to provide your credit card or bank account details to us when registering for an Account. By doing so, you authorize us to provide this information to the Payment Processors. You acknowledge and agree that each Payment Processor’s terms will govern your agreement and interactions with that Payment Processor and that our terms and policies do not govern the processing of your payment by any of the Payment Processors, and that we have no liability arising from your use of or access to any Payment Processor’s services. We are not responsible for any errors by any Payment Processor. You should review the applicable terms and policies of each Payment Processor, including their privacy and data gathering practices, available at the following websites (if you are not resident in the UK, please refer to terms and policies for your jurisdiction using the links below):
Stripe Payments Canada Ltd.: https://stripe.com/gb/privacy
Recurly, Inc.: https://www.recurly.com/legal/terms/
Bambora Inc.: https://www.bambora.com/terms-and-conditions/
If you have elected to utilize the Service to process payments related to goods or services offered by you to End Users through the Service (the "Integrated Payments Service"), you will receive payment through the Payment Processors for any charges actually paid by an End User related to such goods and services ("Business User Payments"), less any commissions, transaction fees or other deductions charged by the Payment Processors and (if applicable) Trainerize, and you authorize Trainerize to have its Payment Processors process all such Business User Payments.
If you utilize the Integrated Payments Service, you acknowledge and agree that:
Business User Payments shall not accrue interest and will be net of any amounts that Trainerize or the Payment Processor is required to withhold by law;
Trainerize is not responsible or liable for any failure or error made by any Payment Processor in connection with the Integrated Payments Service, or for any failure by an End User to make payment to you in connection with the Payments Service;
you will be responsible for all currency conversion charges;
you take full responsibility for all taxes and fees of any nature associated with the Service and in relation to any Business User Payments to you. This includes being responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on you. You will defend, indemnify and hold harmless Trainerize and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from any failure by you to collect and remit such charges and amounts;
you may only use the Integrated Payments Service for legitimate transactions with End Users.
If you utilize the Integrated Payments Service, you represent, warrant and covenant to Trainerize that:
any information you provide us about your business, products or services is accurate and complete;
any Business User Payments represent a transaction for permitted products or services, and any related information accurately describes the transaction;
you will fulfil all of your obligations to End Users and will resolve all disputes with them;
you will comply with all laws applicable to your business and use of the Service; and
you will not use the Integrated Payments Service (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Integrated Payments Service.
THIRD-PARTY WEBSITES
The Site may feature links to other websites or resources on the internet, and other websites or resources may contain links to the Site. These other websites are not under Trainerize’s control, and you acknowledge that Trainerize is not responsible or liable for any third-party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third-party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Trainerize or any association with its operators. You further acknowledge and agree that Trainerize will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third-party content, goods or services available on or through any such website or resource. Access and use of third-party sites, including the information, material, products and services on third-party sites or available through third-party sites, is solely at your own risk.
Without limiting the foregoing, the Service utilizes certain YouTube API services, and by using the Service you are also agreeing to be bound by the YouTube Terms of Service (found at https://www.youtube.com/t/terms), as may be amended from time to time.
INTELLECTUAL PROPERTY RIGHTS
All material and services provided by or through Trainerize, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design, "look and feel", layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by Trainerize or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, Trainerize grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose, worldwide, royalty-free and fully paid-up right to access and use the Materials that we make available to you for the purposes of using the Service as permitted by this Agreement. You are not permitted to download, copy or otherwise store any Materials.
This Clause 11 does not apply to Content; however, you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Trainerize related to the Service, the Site or Trainerize or its business ("Feedback") are and will be Trainerize’s exclusive property without any compensation or other consideration payable to you by Trainerize, and you do so of your own free will and volition. Trainerize may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Trainerize may decide into the Site, the Service, its software, documentation, business or other products or services, or any future versions or derivatives of the foregoing. You hereby provide to Trainerize a perpetual, royalty-free, transferable, worldwide license to use for any reason all rights in any Feedback and, as applicable, procure the waiver of any moral rights and consent to acts which might otherwise infringe your moral rights.
Trainerize responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging. Please be aware that celebrities, and others, may have a "right of publicity," which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. If you use a celebrity name or likeness on the Service and you do not have the appropriate permission, you risk infringing the celebrity’s rights, and depending on the circumstances, this may be true for non-celebrities as well.
If you believe your rights have been infringed, please contact us without delay at [email protected].
PRIVACY AND PERSONAL INFORMATION
We only use your personal information in accordance with our privacy policy (available here).
Business Users will be provided with access to personal data and other data in their Account which is:
provided by that Business User or End Users who use the services of that Business User; or
generated through the use of the platform and which is necessary for the Business Users to use the Services.
Trainerize may also make other aggregated information available to Business Users. Our Privacy Policy sets out the categories of personal data and other data we collect, how we use, process, disclose and retain it in connection with the platform, and how a Business User can access it and exercise its data rights.
WARRANTIES, UNDERTAKINGS AND INDEMNITIES
You warrant and undertake that:
you are free to enter into this Agreement and to perform the obligations imposed on you hereunder, and that by doing so you will not be in breach of any obligation owing to a third-party.
you shall comply with the terms of this Agreement and any and all applicable law in relation to the exercise of your rights, and fulfilment of your obligations under this Agreement;
you will keep all information relating to your Account accurate and up-to-date;
you own, or have a licence to use in accordance with this Agreement, all rights (including intellectual property rights) in your Content; and
the use by Trainerize (including the inclusion on the Site and/or Service by Trainerize) of any Content in accordance with this Agreement shall not infringe the rights, including the intellectual property rights, of any third-party.
You agree to indemnify, defend, and hold harmless Trainerize and its officers, directors, and employees (together, the "Indemnified Parties"), from and against any third-party claim, demand, loss, damage, cost, expense or liability (including, reasonable attorneys’ fees) (collectively and individually, "Claims") incurred by or made against the Indemnified Parties in connection with this Agreement, the Site or the Service, and arising out of:
your non-use or misuse of the Service and any Content, including without limitation your Profile Information, any Content you make available through the Site or Service, and any Content provided by you and forming part of the Site;
your violation or reasonably alleged violation of this Agreement; and
your violation of any rights, including intellectual property rights, of a third-party as set out herein.
Trainerize reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Trainerize and you agree to cooperate with Trainerize’s defence of these Claims. You agree not to settle any matter without the prior written consent of Trainerize. Trainerize will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
INSURANCE
During this Agreement you shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent businessperson in connection with the risks associated with this Agreement, and produce to Trainerize on demand full particulars of that insurance and the receipt for the then current premium.
COMPLIANCE
Anti-Slavery and Anti-Bribery
The Business User warrants, represents and undertakes to Trainerize that:
it is, and all persons utilising its rights or discharging its obligations on its behalf are, and will at all times be fully compliant with all applicable laws relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (the “Anti-Bribery Requirements”);
it has and shall maintain adequate procedures, methodologies and structures in place to prevent persons associated with it from undertaking conduct that might amount to a breach of the Anti-Bribery Requirements and which at least meet or exceed the procedures, methodologies and structures recommended by prevailing government-issued guidance and those implemented in accordance with good industry practice for its business sector;
it shall promptly disclose to Trainerize in writing any instance of soliciting, receiving from or offering to any third-party any bribe or other benefit in connection with its performance of this Agreement;
it, and all persons utilising its rights or discharging its obligations under and in accordance with this Agreement on its behalf, are and will at all times be fully compliant with all applicable laws relating to anti-slavery and human trafficking, including the UK Modern Slavery Act 2015 (the “Anti-Slavery Requirements”);
it shall not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the UK Modern Slavery Act 2015 (if such activity, practice or conduct were carried out in the UK);
it has and shall maintain adequate procedures, methodologies and structures in place to prevent persons associated with it (including subcontractors or other members of its supply chain) from undertaking conduct which might amount to a breach of the Anti-Slavery Requirements and to respond to and deal with actual or potential breaches of the Anti-Slavery Requirements; and
it shall notify Trainerize as soon as it becomes aware of any breach of the Anti-Slavery Requirements or any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.
Preventing the criminal facilitation of tax evasion
The Business User shall comply with all applicable laws relating to tax evasion and the criminal facilitation of tax evasion, including the Criminal Finances Act 2017.
The Business User shall not take any action to criminally facilitate tax evasion by a taxpayer either in the UK or overseas. Criminal tax evasion includes any fraudulent activity that intends to divert funds from the public revenue. Criminal facilitation of tax evasion in the UK includes deliberately and dishonestly facilitating the commission of revenue fraud by another person.
The Business User confirms that it is responsible for its own tax affairs, is subject to taxes in full in the jurisdiction in which it is established, and that it does not criminally facilitate the evasion of tax by a taxpayer either in the UK or overseas.
SUSPENSION OF ACCOUNT
Subject to Clause 16.2, if Trainerize in its sole discretion considers that there is a need to restrict or suspend your Account, the Site and/or the Service, we will provide at least 30 days’ advance notice of this along with a statement of reasons for our decision on a durable medium (except as set out in Clause 16.4).
Trainerize will not be required to provide 30 days’ prior written notice in the event that it:
is subject to a legal or regulatory obligation which requires it to restrict or suspect your Account, the Site and/or the Service to you in a manner which does not allow it to respect the 30-day notice period;
exercises the right to restrict or suspend your Account, the Site and/or the Service under an imperative reason pursuant to applicable law; or
can demonstrate that you repeatedly infringe this Agreement.
In the case of restriction, suspension or termination, you shall have opportunity to clarify the facts and circumstances.
We are not obligated to provide a statement of reasons if:
we are subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable ground or grounds; or
we can demonstrate that you have repeatedly infringed the applicable terms and conditions of this Agreement, resulting in termination of the provision of the whole of the Service.
If Trainerize elects to suspend your Account, the Site and/or the Service for a significant period of time, Trainerize shall refund any amounts already paid by you on a pro rata basis to reflect the period of the current subscription or renewal period (as applicable) during which you will not receive the Services. You will not receive any such refund in the event that Trainerize is suspending your Account, the Site and/or Service to you as a result of your breach of this Agreement in which case, to the extent permitted by law, Trainerize will have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result.
This Clause 16 does not affect your rights of termination as set out in the ‘Cancellation and Termination’ Clause below.
CANCELLATION AND TERMINATION
You may cancel your Account at any time through the interface provided as part of the Service. Cancellation must be issued via the interface. This is the only way to cancel your Account. Email requests (from email accounts other than your Trainerize email account) or phone requests to cancel your Account may not be accepted. If you elect to cancel your Account for convenience, you will not be provided with a refund, in whole or in part, of any pre-paid amount. If you cancel your Account because you allege that we are in breach of this Agreement, and you are able to provide satisfactory evidence in support of the allegation, then Trainerize shall refund any amounts already paid by you on a pro rata basis to reflect the remaining time of the current subscription or renewal period (as applicable) during which you will not receive the Services as a result of your cancellation for cause. You will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the then current subscription period in which you cancelled your Account.
Trainerize reserves the right to terminate this Agreement as follows:
Trainerize may terminate for convenience (i.e., without cause) by giving 30 days’ written notice (subject to the exceptions set out in this Clause). In these circumstances, Trainerize shall refund any amounts already paid by you on a pro rata basis to reflect the remaining time of the current subscription period during which you will not receive the Services as a result of Trainerize’s termination for convenience. Trainerize will not be required to provide 30 days’ prior written notice in the event that it:
is subject to a legal or regulatory obligation which requires it to terminate the provision of the whole of the Service to you in a manner which does not allow it to respect the 30-day notice period;
exercises a right of termination under an imperative reason pursuant to applicable law; or
can demonstrate that you repeatedly infringe this Agreement.
Trainerize may terminate for cause with immediate effect by giving written notice if:
the Business User commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified to do so;
the Business User fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment; or
there is a change in control or ownership of the Business User;
the Business User suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
the Business User commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Business User;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Business User;
the holder of a qualifying floating charge over the assets of the Business User has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the Business User or a receiver is appointed over all or any of the assets of the Business User;
a creditor or encumbrancer of the Business User attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Business User's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Business User in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above; or
the Business User suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
In the case of restriction, suspension or termination, you shall have the opportunity to clarify the facts and circumstances.
Where Trainerize terminates this Agreement, we will provide a statement of reasons for our decision on a durable medium, unless:
we are subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable ground or grounds; or
we can demonstrate that you have repeatedly infringed the applicable terms and conditions of this Agreement, resulting in termination of the provision of the whole of the Service.
On termination of this Agreement for any reason:
your Account will be deleted;
you will not have access to any information provided by you or generated by you or stored on your Account (including but not limited to your Profile Information and Content);
the limited license granted to you in Clause 11.2 shall immediately cease;
you may be prohibited and blocked from creating further Accounts; and
any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
OUR LIABILITY
Nothing in this Agreement excludes or limits our liability for:
death or personal injury caused by our negligence; or
fraud or fraudulent misrepresentation; or
any matter in respect of which it would be unlawful for us to exclude or restrict our liability.
Save as set out in Clause 18.1, the following sub-clauses apply:
in no event shall Trainerize be liable to the Business User for any loss of profits; loss of sales, business or revenue; loss of agreements or contracts; loss of or failure to achieve anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; or any indirect or consequential loss;
in no event shall Trainerize be liable to the Business User for any loss or damage that the Business User suffers under or in connection with any End User contract;
Trainerize’s total and aggregate liability to you in respect of any loss or damage suffered and arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise shall not exceed the amount of £1000.
This Clause 17 shall survive termination or expiry of this Agreement.
19. NOTICES
Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service; or
sent by email,
in the case of Trainerize, to the address specified in Clause 1 and in the case of the Business User, to the address specified in its Account, each as may be updated by written notice from time to time.
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second business day after posting. “Business day” in this context means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. “Business hours” in this context means 9:00am to 5:00pm Monday to Friday on a day that is not a public holiday in England.
A notice given under this Agreement in relation to the termination of, or legal proceedings arising out of or in relation to, this Agreement, is not valid if sent only by email.
FORCE MAJEURE
"Force Majeure Event" means any circumstance not within a party's reasonable control including, without limitation:
acts of God, flood, drought, earthquake or other natural disaster;
epidemic or pandemic;
terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
nuclear, chemical or biological contamination or sonic boom;
any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
collapse of buildings, fire, explosion or accident; and
interruption or failure of utility service.
Subject to Clause 20.3 and provided it has complied with Clause 20.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event ("Affected Party"), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
Neither party shall be entitled to rely on this Clause 20 to claim that it has been prevented, hindered or delayed in its payment of any amount due to the other party under this Agreement.
The Affected Party shall:
as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 14 days, the party not affected by the Force Majeure Event may terminate this Agreement by giving 1 week’s written notice to the Affected Party.
OTHER IMPORTANT INFORMATION
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.
You may only transfer your rights or your obligations under this Agreement if Trainerize agrees in writing. Trainerize may transfer its rights under this Agreement at any time without restriction provided that such assignment will not affect your rights or obligations under this Agreement.
This Agreement is the entire agreement between us related to the subject matter in this Agreement. This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned "electronic" agreement or rely on such an unsigned agreement.
Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Each party at its own cost agrees to do and execute and perform such further deeds, documents, assurances, acts and things as may be required to give effect to the terms, intent and purposes of this Agreement.
INTERNAL COMPLAINTS HANDLING PROCEDURE
Trainerize has an internal complaint-handling system that is available to you free of charge. If you wish to make a complaint related to any of the following, where they affect you in particular:
concerns about Trainerize’s compliance with its obligations under the "Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online information services" (as amended, revised or replaced from time to time) ("P2B Regulation");
technological issues directly related to Trainerize’s provision of the Service to you; or
measures taken by Trainerize in respect of its provision of the Service which affect you,
Please contact Trainerize using [email protected]. Your complaint will be reviewed and forwarded to the appropriate internal resources to consider the concern you have raised.
DISPUTES, GOVERNING LAW AND JURISDICTION
In addition to the internal complaint-handling system above, mediation may be an option to resolve any disputes that could arise between you and Trainerize, including complaints that could not be resolved by means of Trainerize’s internal complaint-handling system.
In the event of a dispute, either you or Trainerize can request the other party to engage in mediation. The P2B Regulation requires both you and Trainerize to engage in good faith throughout any mediation attempts.
If Trainerize agrees to mediate, Trainerize would be willing to engage in mediation using either of the following two mediators:
You do not have to use one of the mediators set out above. Together, you and Trainerize may also agree on another mediator.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Subject to Clauses 22.1 to 23.4 above, any other dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules, which Rules are deemed to be incorporated by reference into this Clause.
The parties agree in respect of an arbitration:
the number of arbitrators shall be one;
the seat, or legal place, of arbitration shall be London, England;
the language to be used in the arbitral proceedings shall be English; and
the governing law of the contract shall be the substantive law of England and Wales.
WHO WE ARE
We are a limited company registered in British Columbia under registered company number BC1264977, and with our registered office at 2900 - 550 Burrard Street Vancouver, BC V6C 0A3e.
These Terms of Service (this "Agreement") set forth the terms and conditions that apply to the access and use of the website located at www.trainerize.com and the Trainerize mobile software application (collectively, the "Site"), each owned and operated by TSR Gym Technik Ltd. and its affiliates ("Trainerize", "we", "our" or "us"), and the services available thereon, including without limitation the services described in the ‘Service Description’ Clause below (the "Service").
You may contact Trainerize by email at [email protected].
You may also reach us by telephone at 1-844-625-1155, but you may be charged additional fees by your network operator. We are not liable to you for any such charges.
WHO THESE TERMS APPLY TO
If you have registered to use the Service as a trainer, gym, coach or other fitness or nutrition professional, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training, meal planning or other related services to one or more End Users, you are a "Business User" and you agree to be bound by this Agreement.
This Agreement applies to Business Users in Australia and New Zealand only. If you are based elsewhere, then these terms and conditions do not apply to you - please navigate back to where you can re-select your jurisdiction.
If you have registered to use the Service for the purpose of accessing, obtaining or otherwise acquiring fitness training, meal planning or other related services from a trainer, gym, coach or other fitness or nutrition professional, you are an "End User”, and this Agreement does not apply to you. The Terms of Service applicable to End Users are available here: https://www.trainerize.com/endUserTerms.
This Agreement is made only in the English language.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "you" or "your" will refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not place any order for the Service on the Site and you may not use the Service.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
CHANGES TO THESE TERMS
We may make changes to this Agreement from time to time (this may be, for example, to reflect changes in law or commercial practice, or to deal with additional features that we introduce). Subject to Clause 3.2, if you have registered an account with us, we will provide you with at least 15 days' advance notice of any such changes.
Trainerize will not be required to provide 15 days’ advance notice of changes to this Agreement if Trainerize:
is subject to a legal or regulatory obligation which requires Trainerize to change this Agreement in a manner which does not allow it to respect such 15 day notice period; or
has to change this Agreement in exceptional circumstances to address an unforeseen and imminent danger related to defending Trainerize, the Site, the Service, the platform, End Users and/or Business Users from fraud, malware, spam, data breaches or other cybersecurity risks.
Unless the amendments must take effect sooner in accordance with Clause 3.2, the amendments will take effect 15 days after the date on which the amended version is posted on the Site (or longer as expressly set out by Trainerize). Prior to that date, the previous version of this Agreement will continue to apply. If you do not cease using the Site and/or Service during that time, then by your continued use, you are considered to have accepted the proposed amendments. If you submit new services to the Site after you have been notified of the proposed amendments, then you shall be considered to have unambiguously waived the 15-day notice period, and the amendments may be brought into effect earlier.
If you disagree with any amendments, you may terminate this Agreement by contacting us before the expiry of the notice period. If you choose to terminate this Agreement in this context, such termination shall take effect within 15 days from the receipt of our notice to you. There is no penalty for terminating in these circumstances.
Please check this Agreement regularly to ensure that you understand the terms and conditions that apply at the time that you access and use the Site and/or Service. You can check the "Last Updated" date at the top of this page to see when the latest version was updated.
SERVICE DESCRIPTION
The Service is a platform that facilitates communications, interactions, and transactions between Business Users and End Users for the purpose of enabling Business Users to monitor, coach, train and communicate with End Users, and enabling End Users to access workout and meal plans, track their progress, access their appointments and classes, buy products, and more. Trainerize does not provide or perform training or coaching. To the extent permitted by law, Trainerize is not responsible for any interactions between Business Users and End Users that are facilitated through or in connection with the Service, nor does Trainerize have any control over the quality, timing, provision or failure to provide, or any aspect whatsoever relating to the provision of coaching, training, workouts, meal plans, progress tracking, appointments, classes, product purchases and other services provided by Business Users to End Users.
The Service may use information and data transmission networks operated by third parties to send data, information and content from a computer or device to Trainerize’s servers, and to serve data, information and content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, that you may incur as a result of the usage of the Service and/or as a result of data, information and content submitted or received by your computer or device through the Service.
To the extent permitted by law, Trainerize does not guarantee that the Site and/or Service will be totally secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and platform in order to access the Site and/or Service and Trainerize recommends that you use your own virus protection software.
In supplying the Service to you, Trainerize shall use reasonable care and skill and comply with all applicable law. Other than as required by law, we shall not be liable under this Agreement if, as a result of such compliance, we are in breach of any of our obligations under this Agreement.
To the extent permitted by law, Trainerize makes no guarantee regarding:
the Site and/or Service being uninterrupted or error free;
the amount, timing and delivery of any clicks or impressions with respect to any content (including third-party content) or advertising on the Site or Service;
the compatibility of any software, hardware or content with the Site; or
the volume of interactions with End Users (if any) that you may engage in via the Site or Service.
Smart Meal Planner
Included as part of the Service is a tool that can be used to generate meal plans and healthy eating recommendations by or on behalf of End Users (the "Smart Meal Planner"). If you have elected to utilize the Smart Meal Planner to provide meal planning, healthy eating recommendations or other nutrition services to End Users, you acknowledge and agree that:
the Smart Meal Planner is not a diagnostic tool or medical device;
the Smart Meal Planner should not be used for the diagnosis, prevention, monitoring, treatment, alleviation, cure or mitigation of any disease, health or medical condition, injury, disability or physiological or pathological process or state;
any recommendations provided through the Smart Meal Planner are not intended to be a substitute for professional medical advice, diagnosis or treatment and you should:
review and consider the appropriateness of such recommendations before providing them to or implementing them for any End User; and
encourage End Users to discuss questions about any medical condition or health concern with their physician or other suitable medical professional;
if an End User provides any information related to a particular medical condition, you shall have an affirmative obligation to provide a disclaimer clearly stating that:
the Smart Meal Planner is not intended or designed for the purpose of managing or treating the End User’s disclosed medical condition;
based on your qualifications, training or experience you are not in a position to provide advice addressing any medical condition; and
the End User should consult with a medical professional;
before using the Smart Meal Planner, you should seek legal advice to determine whether you are permitted to utilize and provide such services in the jurisdictions in which you conduct business. Trainerize is not responsible for, and you are solely responsible and liable for, your compliance with applicable laws, including without limitation those governing the provision of dietitian and nutrition services;
in marketing, promoting and providing your products and services and the Smart Meal Planner, you are not permitted to provide or suggest that Trainerize provides any representations, warranties or guarantees regarding the Smart Meal Planner, or otherwise misrepresent the stated purpose for and intended use of the Smart Meal Planner;
you are solely responsible and liable for any representations, warranties or guaranties you make to any End User, including without limitation those related to your title, qualifications, experience or any other information which may be regulated by law in the applicable jurisdiction, or is otherwise harmful to the contractual rights of any End User who may have relied on such representations, warranties or guarantees; and
you are solely responsible and liable for the information you input into the Smart Meal Planner, and you understand that the accuracy, suitability and safety of the meal plans and recommendations generated by the Smart Meal Planer may be negatively impacted if the information that you input is inaccurate or misleading.
To the extent permitted by law, Trainerize makes no representations, warranties or guarantees regarding the accuracy of caloric and other food nutritional information provided through the Smart Meal Planner or otherwise provided through the Site, the platform or the Service. All such information is sourced from third party food vendors and restaurants. Trainerize cannot control the quality, quantity or consistency of foods served and sold by such third parties.
Trial Program
From time to time and at our sole discretion, we may offer free or discounted pricing for you to evaluate the use of the current Service, that are generally available to customers for a limited period of time (the "Trial Program").
If you register for a Trial Program, you may elect to purchase the full Service within the term of the Trial Program specified by us (the "Trial Period") and in this case you will be able to use the Service with more than one End User. Instructions on how you can do this would be offered to you during the Trial Period and, if you do purchase the full subscription, you will enter into a new contract of sale with us in respect of the full Service and the terms and conditions set out in this Agreement will apply to that contract of sale. You agree that our normal billing rates will apply at that time.
If you do not elect to purchase the full service during the Trial Period, the Trial Period will simply expire at the end of the agreed Trial Period and at that time your access to the Service will be terminated.
You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of End Users and usage) we impose in connection with any Trial Program and that are communicated to you before you choose to enter into the Trial Program. You may not sign-up for multiple accounts in order to receive additional benefits under any Trial Programs. We may terminate or suspend any Trial Program at any time without notice or liability and in our sole discretion. We reserve the right to charge or charge more for any Service or product offered through any Trial Program.
Ranking
Where End Users use the "Find a Trainer" search function on the Site, Business Users will be listed in accordance with:
the search category selected by the End User (for example, yoga, bootcamp or group training etc.);
physical proximity to the End User, starting with the nearest (where no physical location data is available, we use IP geolocation and browser location data, where available); and
the degree of information and level of detail provided for in the relevant Business User’s profile, starting with the highest degree of detail.
REGISTERING YOUR ACCOUNT AND PURCHASING THE SERVICE
In order to purchase and/or use the Service, you must setup an account (an "Account") by supplying an email address and password ("Business User ID") to Trainerize. You must ensure that your Business User ID is not shared with any other person and is kept confidential. You are responsible for any and all activity occurring under your Business User ID. You will promptly notify Trainerize of any actual or suspected unauthorised use of the Service. Trainerize may require that a Business User ID be replaced at any time. That Business User ID, together with any other user information you provide, including but not limited to your social media profiles and location, will form your "Profile Information" and allow you to access your Account.
You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information. You represent and warrant to Trainerize that you have not misrepresented any Profile Information.
We do not provide backups of your Profile Information, and you are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Service.
Trainerize may need to ask a Business User to complete additional verification before it allows the Business User to open an Account.
Once you have signed up for an Account, you may place an order for the Service. To place an order for the Service, you must follow these steps:
log in to your Account;
follow the order procedure in the click-through checkout process;
check your details and correct any informational errors before submitting it - you are responsible for ensuring that your order is complete and accurate;
complete the requested information (this may include your name, email address, billing address, and payment method); and
press "Subscribe" or "Pay Now", as applicable, to finalise your order.
Your order is an offer by you to enter into a subscription for the Service with us. We will confirm our receipt of your order by providing you with an order acknowledgement through the Service. This acknowledgement does not constitute our acceptance of your order. If we accept your order, we will send a confirmation email to you confirming this. A legally binding contract of sale is concluded between you and Trainerize when the confirmation email is sent. At that stage, these Terms of Service are incorporated into that contract of sale. If we do not accept your order, we will notify you of this. We are under no obligation to accept any order, and we do not have to provide reasons for any non-acceptance. We recommend that you print and/or otherwise store a copy of this contract of sale as we do not file or make copies accessible to you. Following conclusion of your order, we shall make the Service available to you as set out in this Agreement.
Once you sign up for an Account, and have placed an order for the Service, you will have the ability to add employees or other personnel (each, an "Authorised Personnel") to your Account through the authentication process provided as part of the Service.
As part of the authentication process, Authorised Personnel that you wish to be associated with your Account will be provided with a unique invitation link that they must use to become Authorised Personnel affiliated with your Account.
You are solely responsible for all activities of each Authorised Personnel that occur under or in connection with your Account or the End Users you or your Authorised Personnel train or manage.
Unless otherwise agreed to between the parties in writing, Trainerize deems the person under whose name appears on the credit or charge card that pays the charges for the Service to be the owner and controller of the Business User ID, Profile Information and Account for all purposes under this Agreement. If a corporate or other organisation’s name appears on the credit or charge card, that corporation or organisation is deemed to be the owner. If any dispute arises as to who owns or controls a Business User ID Profile Information, or Account, the credit or charge card we have on file for the Account will continue to be charged in accordance with this Agreement, and you will be responsible to continue to pay for the Service until Trainerize receives written confirmation from the Account email address confirming a change in ownership and control of the Account.
You agree:
to co-operate with Trainerize in all matters relating to the Service (including but not limited to reasonable instructions of Trainerize from time to time);
to provide to Trainerize (and/or its authorised agents, subcontractors, consultants and employees) access to your data, records, staff or premises as reasonably required by Trainerize to perform the Service in a timely manner and at no charge to Trainerize;
not to use the Site, the Service, or your Account in any way that breaches this Agreement or any applicable local, national or international law or regulation;
not to infringe our intellectual property rights or those of any third party in relation to your use of the Account;
not to use your Account for unauthorised mass-communication such as spam or junk mail;
not to misuse the Site and/or Service by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;
not to attempt to gain unauthorised access to the Site and/or Service, the server on which the Site and/or Service is/are stored or any server, computer or database connected to the Site and/or Service;
not to attack the Site and/or Service via a denial-of-service attack or a distributed denial-of service attack;
not to modify, decompile or reverse engineer any software supplied as part of, or in connection with, the Site and/or Service;
not to use the Site and/or Service by automated means or otherwise for the purposes of scraping, extracting or otherwise obtaining any material from Trainerize for use within a third-party website or application;
not to collect or harvest any information or data from the Trainerize systems or attempt to decipher any transmission to or from the servers running the Site and/or Service;
to hold any necessary licenses, certifications and/or qualifications that are appropriate to your interactions with End Users (whether online or in-person);
not to either by any act or omission - bring the Site and/or Service and/or Trainerize (and/or any of the Trainerize’s group companies or affiliates) into disrepute;
not to use the Site and/or Service in any way that is contrary to Trainerize’s public image, goodwill or reputation;
not to express or imply that any of its statements, activities or causes are endorsed by Trainerize without Trainerize’s prior written consent in each instance;
not to test or develop any third-party integrations with the Site and/or Service without Trainerize’s express written permission;
not to “frame” or “mirror” any part of the Site and/or Service without Trainerize’s prior written consent;
not to execute any form of network monitoring or run a network analyser or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between or with the servers of the Site and/or Service;
not to copy, or otherwise reproduce or re-sell any part of the Site and/or Service unless expressly permitted to do so in this Agreement;
not to access, query or search the Site and/or Service with any automated system, other than through Trainerize’s published interfaces;
not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Site and/or Service;
not to make alterations to, or modifications of, the whole or any part of the Site and/or Service, or permit the Site and/or Service or any part of them to be combined with, or become incorporated in, any other programs;
not to circumvent any technical measures Trainerize uses to provide and/or secure the Site and/or Service;
not to attempt to gain unauthorised access to the computer systems of Trainerize or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Service;
not to decompile or reverse engineer or attempt to access the source code of the software underlying the Site, the Service or any other Trainerize technology;
not to copy, archive, store, reproduce, rearrange, modify, download, upload, create derivative works from, display, perform, publish, distribute, redistribute, or disseminate all or any part of the Site or Service;
not to access the Site or Service for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site or Service;
not to access the Site or Service for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
not to access the Site to upload any Content or computer code for the purposes of:
causing a breach or override of security to the Site or Service;
interfering with the proper working, functionality or performance of the Site or Service; or
preventing others from accessing or using the Site or Service; and
not to create multiple accounts to evade punishment or avoid restrictions.
By breaching Clause 5.11, you may also commit criminal offences. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to access or use the Site and/or Service will cease immediately.
TERM AND RENEWAL
We will provide the Service to you on and from the date on which we confirm our acceptance of your order and take payment for a monthly or annual subscription period (the "Initial Subscription Period"). After the expiry of the Initial Subscription Period, this Agreement shall automatically renew for subsequent renewal periods of one month or 12 months, depending on the Initial Subscription Period chosen (each, a "Renewal Period") unless and until this Agreement is terminated in accordance with its terms and in particular as described in the ‘Cancellation and Termination’ Clause below.
Upon the expiry of the current period (whether the Initial Subscription Period, or any subsequent Renewal Period), you authorise us to take automatic payment in respect of the subsequent Renewal Period, as set out in the ‘Fees and Payment Processors’ Clause below.
You agree that we or our Payment Processors are authorised to charge you:
a fee for any applicable Service for which you have subscribed, billed on the basis of the subscription period;
any other fees for Services you may purchase;
any charges for use of the Service in excess of the usage or other limits placed on your use of the Service (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance);
any applicable taxes in connection with your use of the Service to the credit or charge card you provide (and you agree to reimburse us for all collection costs and interest for any overdue amounts); and
any and all applicable currency conversion charges.
If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your Account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.
YOUR RELATIONSHIP WITH END USERS
You are required to enter into a separate, direct and legally binding contract with each and every End User that you interact with via the Site. If you elect to interact with End Users in connection with the Service, you should enter into a contract with each such End User and you hereby represent and warrant to us that you have obtained all rights and consents necessary from the End User to use their content submitted through the Service as intended under the Service. Trainerize is not a party to (and has no obligations, responsibilities or liabilities whatsoever under) the contract between a Business User and an End User. Every contract between a Business User and an End User must be fully compliant with all applicable laws and with Trainerize’s Fair Contracting Policy which can be accessed here.
Every interaction that you have with an End User, whether online or offline, must be fully compliant with any and all applicable laws. When interacting in-person, this may involve compliance with applicable health and safety regulations.
You are solely responsible for:
your relationship with End Users and the products and services you publicise, offer and sell, including without limitation the nature and quality of such products and services, and delivery, support, refunds, returns and any other ancillary services you provide to End Users;
all aspects of your transactions with End Users;
accurately communicating (and not misrepresenting) the nature of your products or services and the pricing of those;
ensuring that End Users have a meaningful way to contact you in the event that the product or service is not provided as described (or for any other reason);
your transactions with End Users are fair (and not deceptive) and do not expose End Users to unreasonable risks;
ensuring that you at all times maintain fair return, refund, cancellation, delivery, support, disputes and complaints procedures;
any losses that you incur as a result of your transactions with End Users in connection with your use of the Service; and
ensuring you conduct your interactions with End Users in accordance with the highest standards of health and safety and in accordance with good industry practice (meaning the exercise of skill, diligence, prudence and foresight that would reasonably or ordinarily be expected from a skilled and experienced individual engaged in the same or similar type of undertaking).
Trainerize gives no warranties or representations about End Users, including but not limited to:
the ability of End Users to pay for any services or products; and/or
the creditworthiness of End Users.
SUBMISSION OF CONTENT ON THE SITE
The Site and the Service available thereon enable you to provide or upload content, including but not limited to messages, materials, data, text, music, sound, photos, videos, graphics, applications, code and other information or content (collectively, "Content"). You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences (as set out in this Clause) for submitting, providing or uploading it.
Trainerize will use Content you upload solely in connection with providing the Service to you, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or Service, you grant to Trainerize a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Service to you. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Service.
You acknowledge and agree that your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Service, and as such may be accessible to others including without limitation to:
your agents;
End Users;
third-party service providers and their agents;
any other person to whom any of the foregoing persons have granted access to your Content; and
affiliates in accordance with the Privacy Policy.
Trainerize shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Service is not shared (unless you select otherwise), but you acknowledge and agree that Trainerize cannot and does not guarantee any confidentiality with respect to your Content whatsoever.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Trainerize or Trainerize’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that Trainerize is not responsible for any violations of any third-party intellectual property rights, privacy rights, publicity rights, trademark rights, contract rights or any other rights of any person or entity in any Content that you submit to Trainerize. You agree to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by you to the Site.
You agree that you will not publish or make available any Content that:
infringes, violates or misappropriates any third-party intellectual property or proprietary rights;
contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
is misleading, deceptive, fraudulent or otherwise illegal;
is libellous or defamatory;
is in any way threatening, harmful, frightening, abusive, bullying, harassing or malicious to any person or entity;
promotes or condones terrorism, violence or illegal behaviour of any kind (including but not limited to engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes);
is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Trainerize;
is invasive of another’s privacy;
impersonates a Trainerize employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity;
interferes or attempts to interfere with the proper working of the Site or Service or prevents or negatively affects others’ ability to use the Site or Service (for example because it disrupts the normal flow of dialogue with an excessive number of messages in a flooding attack);
uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or Service or the content contained therein;
facilitates the unlawful distribution of copyrighted Content;
includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Service to users;
constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Site or Service for the purposes of automating logins to the Site; or
contains obscene, offensive, adult or pornographic material.
All Business Users must consent to the monitoring of Content. Whilst Trainerize has no obligation to monitor, moderate or vet Content, we reserve the right to do so. Trainerize may remove or require you to remove Content and may disclose any information necessary or appropriate to satisfy our legal obligations, protect Trainerize or its customers, or operate the Site or Service properly, or improve the Site or Service.
If you believe your rights have been infringed on the Service, or if you would like to flag any Content that you believe to be unacceptable, please contact us at [email protected]. To assist us in investigating, please provide us with your full name and address, along with details of:
the date and time the relevant Content was posted;
where it can be found on the Site;
the email address of the person who posted it;
reasons why the Content should be removed, along with evidence for this; and
copies of any communication with the person who posted it (if any).
You must not transmit any music in connection with your use of the Site or Service unless you own and/or have obtained a license to all necessary rights in the music (e.g., including as pertains to any recorded music or musical compositions embodied in your Content).
FEES AND PAYMENT PROCESSORS
Current pricing for the Service is available at [email protected]. The prices are exclusive of Goods and Services Tax ("GST"). Where GST is payable in respect of some or all of the Service you must pay such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the charges.
Unless otherwise agreed to by Trainerize, fees will be billed in advance for each month or year (depending on your chosen billing cycle and Services ordered) and to the extent permitted by law, are non-refundable (except where stated otherwise in this Agreement). We will take your first payment upon our acceptance of your order. We will take subsequent payments by automatic payment at annual or monthly intervals (depending on your chosen billing cycle), on the date that your current subscription period expires.
You can cancel this Agreement at any time in accordance with your termination rights as set out in the ‘Cancellation and Termination’ Clause below. In order to prevent an auto-renewal payment being taken in respect of a subsequent renewal period, you must notify us of your intention to terminate at least 1 day before the annual renewal date.
Other than as required by law, there will be no refunds or credits for partial months of service or for periods in which your Account remains open but you do not use the Service.
All overdue fees shall accrue interest at the rate of 3% per annum above the Reserve Bank of Australia base rate, and you shall reimburse Trainerize for all expenses (including reasonable legal fees) incurred by Trainerize to collect any amount that is not paid when due.
We reserve the right to modify our billing rates at any time upon 30 days’ written notice by posting such fee changes to the Site or through email notification to you. You will be liable to pay such modified billing rates unless you choose to terminate this Agreement in accordance with your termination rights set out in the ‘Cancellation and Termination’ Clause below.
Trainerize does not process payments on its own. The payment services that facilitate payments in connection with this Agreement are provided by Stripe Payments Canada Ltd., Recurly, Inc., Bambora Inc and their respective affiliates (each a "Payment Processor" and collectively, the "Payment Processors"). You are required to provide your credit card or bank account details to us when registering for an Account. By doing so, you authorize us to provide this information to the Payment Processors. You acknowledge and agree that each Payment Processor’s terms will govern your agreement and interactions with that Payment Processor and that our terms and policies do not govern the processing of your payment by any of the Payment Processors, and that we have no liability arising from your use of or access to any Payment Processor’s services. We are not responsible for any errors by any Payment Processor. You should review the applicable terms and policies of each Payment Processor, including their privacy and data gathering practices, available at the following websites:
Stripe Payments Canada Ltd.: https://stripe.com/au/privacy / https://stripe.com/nz/privacy
Recurly, Inc.: https://www.recurly.com/legal/terms/
Bambora Inc.: https://www.bambora.com/terms-and-conditions/
If you have elected to utilize the Service to process payments related to goods or services offered by you to End Users through the Service (the "Integrated Payments Service"), you will receive payment through the Payment Processors for any charges actually paid by an End User related to such goods and services ("Business User Payments"), less any commissions, transaction fees or other deductions charged by the Payment Processors and (if applicable) Trainerize, and you authorize Trainerize to have its Payment Processors process all such Business User Payments.
If you utilize the Integrated Payments Service, you acknowledge and agree that:
Business User Payments shall not accrue interest and will be net of any amounts that Trainerize or the Payment Processor is required to withhold by law;
Trainerize is not responsible or liable for any failure or error made by any Payment Processor in connection with the Integrated Payments Service, or for any failure by an End User to make payment to you in connection with the Payments Service;
you will be responsible for all currency conversion charges;
you take full responsibility for all taxes and fees of any nature associated with the Service and in relation to any Business User Payments to you. This includes being responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on you. You will defend, indemnify and hold harmless Trainerize and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from any failure by you to collect and remit such charges and amounts;
you may only use the Integrated Payments Service for legitimate transactions with End Users.
If you utilize the Integrated Payments Service, you represent, warrant and covenant to Trainerize that:
any information you provide us about your business, products or services is accurate and complete;
any Business User Payments represent a transaction for permitted products or services, and any related information accurately describes the transaction;
you will fulfil all of your obligations to End Users and will resolve all disputes with them;
you will comply with all laws applicable to your business and use of the Service; and
you will not use the Integrated Payments Service (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Integrated Payments Service.
THIRD PARTY WEBSITES
The Site may feature links to other websites or resources on the internet, and other websites or resources may contain links to the Site. These other websites are not under Trainerize’s control, and you acknowledge that Trainerize is not responsible or liable for any third-party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third-party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Trainerize or any association with its operators. You further acknowledge and agree that Trainerize will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third-party content, goods or services available on or through any such website or resource. Access and use of third-party sites, including the information, material, products and services on third-party sites or available through third-party sites, is solely at your own risk.
Without limiting the foregoing, the Service utilizes certain YouTube API services, and by using the Service you are also agreeing to be bound by the YouTube Terms of Service (found at https://www.youtube.com/t/terms), as may be amended from time to time.
INTELLECTUAL PROPERTY RIGHTS
All material and services provided by or through Trainerize, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design, "look and feel", layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by Trainerize or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, Trainerize grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose, worldwide, royalty-free and fully paid-up right to access and use the Materials that we make available to you for the purposes of using the Service as permitted by this Agreement. You are not permitted to download, copy or otherwise store any Materials.
This Clause 11 does not apply to Content; however, you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Trainerize related to the Service, the Site or Trainerize or its business ("Feedback") are and will be Trainerize’s exclusive property without any compensation or other consideration payable to you by Trainerize, and you do so of your own free will and volition. Trainerize may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Trainerize may decide into the Site, the Service, its software, documentation, business or other products or services, or any future versions or derivatives of the foregoing. You hereby provide to Trainerize a perpetual, royalty-free, transferable, worldwide license to use for any reason all rights in any Feedback and, as applicable, procure the waiver of any moral rights and consent to acts which might otherwise infringe your moral rights.
Trainerize responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging. Please be aware that celebrities, and others, may have a "right of publicity," which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. If you use a celebrity name or likeness on the Service and you do not have the appropriate permission, you risk infringing the celebrity’s rights, and depending on the circumstances, this may be true for non-celebrities as well.
If you believe your rights have been infringed, please contact us without delay at [email protected].
PRIVACY AND PERSONAL INFORMATION
We only use your personal information in accordance with our privacy policy (available here).
Business Users will be provided with access to personal data and other data in their Account which is:
provided by that Business User or End Users who use the services of that Business User; or
generated through the use of the platform and which is necessary for the Business Users to use the Services.
Trainerize may also make other aggregated information available to Business Users. Our Privacy Policy sets out the categories of personal data and other data we collect, how we use, process, disclose and retain it in connection with the platform, and how a Business User can access it and exercise its data rights.
13. WARRANTIES, UNDERTAKINGS AND INDEMNITIES
You warrant and undertake that:
you are free to enter into this Agreement and to perform the obligations imposed on you hereunder, and that by doing so you will not be in breach of any obligation owing to a third party.
you shall comply with the terms of this Agreement and any and all applicable law in relation to the exercise of your rights, and fulfilment of your obligations under this Agreement;
you will keep all information relating to your Account accurate and up-to-date;
you own, or have a licence to use in accordance with this Agreement, all rights (including intellectual property rights) in your Content; and
the use by Trainerize (including the inclusion on the Site and/or Service by Trainerize) of any Content in accordance with this Agreement shall not infringe the rights, including the intellectual property rights, of any third party.
You agree to indemnify, defend, and hold harmless Trainerize and its officers, directors, and employees (together, the "Indemnified Parties"), from and against any third-party claim, demand, loss, damage, cost, expense or liability (including, reasonable attorneys’ fees) (collectively and individually, "Claims") incurred by or made against the Indemnified Parties in connection with this Agreement, the Site or the Service, and arising out of:
your non-use or misuse of the Service and any Content, including without limitation your Profile Information, any Content you make available through the Site or Service, and any Content provided by you and forming part of the Site;
your violation or reasonably alleged violation of this Agreement; and
your violation of any rights, including intellectual property rights, of a third party as set out herein.
Trainerize reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Trainerize and you agree to cooperate with Trainerize’s defence of these Claims. You agree not to settle any matter without the prior written consent of Trainerize. Trainerize will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
INSURANCE
During this Agreement you shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent businessperson in connection with the risks associated with this Agreement, and produce to Trainerize on demand full particulars of that insurance and the receipt for the then current premium.
COMPLIANCE
Anti-Slavery and Anti-Bribery
The Business User warrants, represents and undertakes to Trainerize that:
it is, and all persons utilising its rights or discharging its obligations on its behalf are, and will at all times be fully compliant with all applicable laws relating to anti-bribery and anti-corruption (the “Anti-Bribery Requirements”);
it has and shall maintain adequate procedures, methodologies and structures in place to prevent persons associated with it from undertaking conduct that might amount to a breach of the Anti-Bribery Requirements and which at least meet or exceed the procedures, methodologies and structures recommended by prevailing government-issued guidance and those implemented in accordance with good industry practice for its business sector;
it shall promptly disclose to Trainerize in writing any instance of soliciting, receiving from or offering to any third party any bribe or other benefit in connection with its performance of this Agreement;
it, and all persons utilising its rights or discharging its obligations under and in accordance with this Agreement on its behalf, are and will at all times be fully compliant with all applicable laws relating to anti-slavery and human trafficking, including the Australian Modern Slavery Act 2019 (the “Anti-Slavery Requirements”);
it shall not engage in any activity, practice or conduct that would constitute an offence under the Australian Modern Slavery Act 2019 (if such activity, practice or conduct were carried out in Australia);
it has and shall maintain adequate procedures, methodologies and structures in place to prevent persons associated with it (including subcontractors or other members of its supply chain) from undertaking conduct which might amount to a breach of the Anti-Slavery Requirements and to respond to and deal with actual or potential breaches of the Anti-Slavery Requirements; and
it shall notify Trainerize as soon as it becomes aware of any breach of the Anti-Slavery Requirements or any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.
Preventing the criminal facilitation of tax evasion
The Business User shall comply with all applicable laws relating to tax evasion and the criminal facilitation of tax evasion.
The Business User shall not take any action to criminally facilitate tax evasion by a taxpayer either in Australia, New Zealand or overseas. Criminal tax evasion includes any fraudulent activity that intends to divert funds from the public revenue. Criminal facilitation of tax evasion includes deliberately and dishonestly facilitating the commission of revenue fraud by another person.
The Business User confirms that it is responsible for its own tax affairs, is subject to taxes in full in the jurisdiction in which it is established, and that it does not criminally facilitate the evasion of tax by a taxpayer either in Australia, New Zealand or overseas.
SUSPENSION OF ACCOUNT
If Trainerize in its sole discretion considers that there is a need to restrict or suspend your Account, the Site and/or the Service, we will provide at least 30 days’ advance notice of this.
If Trainerize elects to suspend your Account, the Site and/or the Service for a significant period of time, Trainerize shall refund any amounts already paid by you on a pro rata basis to reflect the period of the current subscription or renewal period (as applicable) during which you will not receive the Services. You will not receive any such refund in the event that Trainerize is suspending your Account, the Site and/or Service to you as a result of your breach of this Agreement in which case, to the extent permitted by law, Trainerize will have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result.
This Clause 16 does not affect your rights of termination as set out in the ‘Cancellation and Termination’ Clause below.
CANCELLATION AND TERMINATION
You may cancel your Account at any time through the interface provided as part of the Service. Cancellation must be issued via the interface. This is the only way to cancel your Account. Email requests (from email accounts other than your Trainerize email account) or phone requests to cancel your Account may not be accepted. If you elect to cancel your Account for convenience, you will not be provided with a refund, in whole or in part, of any pre-paid amount. If you cancel your Account because you allege that we are in breach of this Agreement, and you are able to provide satisfactory evidence in support of the allegation, then Trainerize shall refund any amounts already paid by you on a pro rata basis to reflect the remaining time of the current subscription or renewal period (as applicable) during which you will not receive the Services as a result of your cancellation for cause. You will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the then current subscription period in which you cancelled your Account.
Trainerize reserves the right to terminate this Agreement as follows:
Trainerize may terminate for convenience (i.e., without cause) by giving 30 days’ written notice (subject to the exceptions set out in this Clause). In these circumstances, Trainerize shall refund any amounts already paid by you on a pro rata basis to reflect the remaining time of the current subscription period during which you will not receive the Services as a result of Trainerize’s termination for convenience. Trainerize will not be required to provide 30 days’ prior written notice in the event that it:
is subject to a legal or regulatory obligation which requires it to terminate the provision of the whole of the Service to you in a manner which does not allow it to respect the 30-day notice period;
exercises a right of termination under an imperative reason pursuant to applicable law; or
can demonstrate that you repeatedly infringe this Agreement.
Trainerize may terminate for cause with immediate effect by giving written notice if:
the Business User commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified to do so;
the Business User fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment; or
there is a change in control or ownership of the Business User;
the Business User suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
the Business User commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Business User;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Business User;
the holder of a qualifying floating charge over the assets of the Business User has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the Business User or a receiver is appointed over all or any of the assets of the Business User;
a creditor or encumbrancer of the Business User attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Business User's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Business User in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above; or
the Business User suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
In the case of restriction, suspension or termination, you shall have the opportunity to clarify the facts and circumstances.
Where Trainerize terminates this Agreement, we will provide a statement of reasons for our decision on a durable medium, unless:
we are subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable ground or grounds; or
we can demonstrate that you have repeatedly infringed the applicable terms and conditions of this Agreement, resulting in termination of the provision of the whole of the Service.
On termination of this Agreement for any reason:
your Account will be deleted;
you will not have access to any information provided by you or generated by you or stored on your Account (including but not limited to your Profile Information and Content);
the limited license granted to you in Clause 11.2 shall immediately cease;
you may be prohibited and blocked from creating further Accounts; and
any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
OUR LIABILITY
Nothing in this Agreement excludes or limits our liability for:
death or personal injury caused by our negligence; or
fraud or fraudulent misrepresentation; or
any matter in respect of which it would be unlawful for us to exclude or restrict our liability.
Trainerize does not seek to exclude or restrict its liability where to do so would be illegal or ineffective. Nothing in this Agreement limits or excludes any liability which cannot legally be limited, including under the consumer guarantees under the Australian Consumer Law. If there is a major failure in the delivery of the Service to you in Australia, you will under the law be entitled at your election to:
a resupply of the Service;
a refund; and/or
compensation.
Save as set out in Clause 18.1 and 18.2, the following sub-clauses apply:
in no event shall Trainerize be liable to the Business User for any loss of profits; loss of sales, business or revenue; loss of agreements or contracts; loss of or failure to achieve anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; or any indirect or consequential loss;
in no event shall Trainerize be liable to the Business User for any loss or damage that the Business User suffers under or in connection with any End User contract;
Trainerize’s total and aggregate liability to you in respect of any loss or damage suffered and arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise shall not exceed the amount of AU$1000.
This Clause 18 shall survive termination or expiry of this Agreement.
NOTICES
Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service; or
sent by email,
in the case of Trainerize, to the address specified in Clause 1 and in the case of the Business Under, to the address specified in its Account, each as may be updated by written notice from time to time.
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second business day after posting. “Business day” in this context means a day, other than a Saturday, Sunday or public holiday in Australia, when banks in Sydney are open for business; and
if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. “Business hours” in this context means 9:00am to 5:00pm Monday to Friday on a day that is not a public holiday in Australia.
A notice given under this Agreement in relation to the termination of, or legal proceedings arising out of or in relation to, this Agreement, is not valid if sent only by email.
FORCE MAJEURE
"Force Majeure Event" means any circumstance not within a party's reasonable control including, without limitation:
acts of God, flood, drought, earthquake or other natural disaster;
epidemic or pandemic;
terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
nuclear, chemical or biological contamination or sonic boom;
any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
collapse of buildings, fire, explosion or accident; and
interruption or failure of utility service.
Subject to Clause 20.3 and provided it has complied with Clause 20.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event ("Affected Party"), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
Neither party shall be entitled to rely on this Clause 20 to claim that it has been prevented, hindered or delayed in its payment of any amount due to the other party under this Agreement.
The Affected Party shall:
as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 14 days, the party not affected by the Force Majeure Event may terminate this Agreement by giving 1 week’s written notice to the Affected Party.
OTHER IMPORTANT INFORMATION
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.
You may only transfer your rights or your obligations under this Agreement if Trainerize agrees in writing. Trainerize may transfer its rights under this Agreement at any time without restriction provided that such assignment will not affect your rights or obligations under this Agreement.
This Agreement is the entire agreement between us related to the subject matter in this Agreement. This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned "electronic" agreement or rely on such an unsigned agreement.
Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
Each party at its own cost agrees to do and execute and perform such further deeds, documents, assurances, acts and things as may be required to give effect to the terms, intent and purposes of this Agreement.
DISPUTES, GOVERNING LAW AND JURISDICTION
Mediation may be an option to resolve any disputes that could arise between you and Trainerize, including complaints that could not be resolved by means of Trainerize’s internal complaint-handling system.
In the event of a dispute, either you or Trainerize can request the other party to engage in mediation.
If Trainerize agrees to mediate, Trainerize would be willing to engage in mediation using either of the following two mediators:
You do not have to use one of the mediators set out above. Together, you and Trainerize may also agree on another mediator.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of New South Wales, Australia.
Subject to Clauses 22.1 to 22.4 above, any other dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Australian Centre for International Arbitration Rules, which Rules are deemed to be incorporated by reference into this Clause.
The number of arbitrators shall be one.
The seat, or legal place, of arbitration shall be Sydney, Australia.
The language to be used in the arbitral proceedings shall be English.
The governing law of the contract shall be the substantive law of New South Wales, Australia.