Last updated: October 3, 2018
A Terms of Service (“ToS” or “Terms”) is a statement of rules and a contract between the provider and users which a user must agree to abide by in order to use a service. This ToS was created and prepared by fitDEGREE, LLC, a Delaware limited liability company (“fitDEGREE”, the “Company”, “us”, “we”, or “our”). Please read this ToS carefully before using, visiting www.fitdegree.com, visiting or using our mobile website, any other web-based platforms, and the fitDEGREE Administrator Platform (defined below) (collectively, the “Websites”), or downloading and using the fitDEGREE Mobile Application (the “fitDEGREE App”) (collectively, the Websites, fitDEGREE App and any and all services provided by fitDEGREE can be referred to as the “Services” or the “fitDEGREE Services”).
The fitDEGREE Administrator Platform means fitDEGREE Software hosted by fitDEGREE, operated by fitDEGREE on a “Software as a Service” (“SaaS”) basis, and accessed and used by each Club and Club’s Authorized Users (as defined below). The Administrator Platform is accessible online and through the fitDEGREE App for the Club’s and/or Club’s Authorized User input of user data, and to generate and receive data analytics and output.
Authorized User means each person who is authorized by the Club to have administrative privileges on the fitDEGREE App and the Administrator Platform and who accesses or uses any Administrative Accounts (as defined below) of the Club with fitDEGREE. An Authorized User may be an employee, contractor, consultant, or other agent of the Club.
The administrative functionality of the Mobile Application and Administrator Platform is designed to be administered only by Authorized Users. fitDEGREE provides the Club with two levels of accounts:
Master Account: fitDEGREE provides the Club with one or more account and login that grants full, unrestricted access to the Services for one or more specified Authorized Users (“Master Account”).
Secondary Account: At the Club’s discretion, the Club may assign other Authorized Users with an account and login that restricts access to certain aspects of the Services (“Secondary Account”, together with the “Master Account”, the “Administrative Account(s)”).
By using or accessing the Services, you agree to this ToS, as updated from time to time by fitDEGREE. If fitDEGREE makes changes to the ToS, we will notify you of the change as described below under “Additional Terms”. If we make changes to policies, guidelines or other terms referenced in or incorporated by this Statement, we may provide notice on the Websites and/or fitDEGREE App. Your continued use of the Services, following notice of the changes to our terms, policies or guidelines, constitutes your acceptance of our amended terms, policies or guidelines.
fitDEGREE provides certain services and collects a variety of information about the users. As such, fitDEGREE may ask you to review and accept separate terms and conditions that apply to your use and interaction with the fitDEGREE Services. To the extent those supplemental terms and conditions conflict with this ToS, the supplemental terms and conditions govern with respect to your use of such fitDEGREE Services, to the extent they conflict.
If you violate the letter or spirit of this ToS, or otherwise create a risk or possible legal exposure to fitDEGREE, or for any other reason that fitDEGREE, in its sole discretion deems necessary, fitDEGREE can stop providing all or part of the Services to you. fitDEGREE will notify you by the email you provided in your registration for the Services or at the next time you attempt to access your account of any termination of Services.
Your access to and use of the Services is conditioned upon your acceptance of and compliance with these Terms, and any terms, policies, or guidelines referenced herein upon creating a user profile. These Terms apply to all clubs, studios, gyms and similar facilities, and others (“Clubs”) who access or use the Services. By accessing or using the Services, you agree to be bound by these Terms.
IF YOU DISAGREE WITH ANY PART OF THESE TERMS, YOU MUST EXIT THIS WEBSITE IMMEDIATELY AND DISCONTINUE ANY USE OF THE INFORMATION AND THE SERVICES.
fitDEGREE hereby incorporates by reference any additional terms, conditions and privacy notices to this ToS as if set forth fully herein.
Welcome to fitDEGREE! We provide services via a variety of technologies, including the fitDEGREE Websites and the fitDEGREE App. The technologies that make up the Service may change from time to time.
fitDEGREE provides the service to health clubs, studios, gyms and similar facilities (each, a “Club”, also referred to as “it” or “its”) pursuant to a written agreement between fitDEGREE and each Club (“Club Agreement”). Each person who uses the Service is referred to as a “user” or “you” or “your”. Each Club obtains access to the Service and the fitDEGREE Administrator Platform pursuant to these ToS. Individual users are provided access to the Services under a separate Terms of Service Agreement, which can be found below the ToS for Studio Owners. These ToS and the Privacy Notice apply to each Club as defined above. Additionally, each Club is subject to a Data Processing Agreement (DPA), which can be found here: [LINK].
These ToS govern the Club’s access to and use of the Service. By accessing or using the Service, the Club agrees to be bound by these Terms as if these Terms were signed by the Club in ink on a hard-copy agreement.
The Club is invited to use and view the Services available on the fitDEGREE Websites and to use the fitDEGREE Mobile Application and/or any Services associated therewith. fitDEGREE has the ability to collect and store certain data provided by the Club of the fitDEGREE App, Websites or any of the Services. The collection and storage of this data is subject to the terms enumerated in fitDEGREE’s Privacy Notice, which can be found below the ToS for End Users, which is incorporated in this ToS as if set forth at length herein.
Should the Club encounter any bugs, glitches or other forms of troubleshooting related issues, please contact us by using the fitDEGREE App.
The remainder of this ToS is intended to act as a contract between fitDEGREE and all visitors, users, Clubs, and others who access or use the Services. The terms, restrictions, disclaimers, and other legal notifications will affect the way the Club uses our Services.
As a condition to the Clubs’ right to access and use the Services, the Club agrees to these Terms and to strictly observe the following rules of conduct (“Rules of Conduct”):
Do comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements.
Do provide accurate information to us and update it as necessary.
Do review and comply with our Privacy Notice and the ToS.
Do review and comply with notices sent by us concerning the Service.
Don’t act dishonestly, inappropriately or unprofessionally by posting inappropriate, inaccurate, or objectionable information or other content (“Content”).
Don’t reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property contained or embedded in or used to provide the Service or the fitDEGREE Content, or any part thereof.
Don’t include information in the Service, except in designated fields, that reveals the identity or sensitive personal information of you or anyone else (i.e., information that identifies you as an individual, “Personal Information”), such as an address, that is confidential in nature.
Don’t use any information, data or Content you view or obtain from our Service to provide any services that are competitive with our Service.
Don’t imply or state, directly or indirectly, that you are affiliated with or endorsed by fitDEGREE, unless you have entered into a written agreement with fitDEGREE that expressly permits you to say that.
Don’t adapt, modify or create derivative works based on any part of the Service or the technology underlying the Service.
Don’t rent, lease, loan, trade, sell or re-sell access to the Service or any Content (other than Content you personally own) or any data on the Service.
Don’t use software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any part of the Service.
Don’t use bots or other automated methods to add or download Content, or send or redirect messages or other permitted activities other than through fitDEGREE-sanctioned tools.
Don’t access the Service for purposes of monitoring its availability, performance or functionality, or for any competitive purpose.
Don’t engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Service.
Don’t access the Service by any means other than through the interfaces provided by fitDEGREE.
Don’t override any security component included in or underlying the Service.
Don’t engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on our infrastructure, including but not limited to, unsolicited communications to other users or fitDEGREE personnel, attempts to gain unauthorized access, or transmission or activation of computer viruses.
Don’t remove any copyright, trademark or other proprietary rights notices contained in or on the Service, including any of our notices or notices of our licensors, or any notices of any other users (for more information, see below under “Website Content, Ownership and Copyright Notice”).
Don’t collect, use or transfer any information, including any Personal Information, obtained from the Service, except as expressly permitted in the Terms or as the owner of the information may expressly permit in writing.
Don’t interfere with or disrupt the Service, including but not limited to any servers or networks connected to the Service.
Don’t infringe or use the Service’s or fitDEGREE’s brands, logos, trademarks or service marks, including, without limitation in any business name, email, or URL.
Don’t access, tamper with, or use non-public areas of the Service, fitDEGREE’s computer systems, or the technical delivery systems of fitDEGREE’s providers.
Don’t forge any Transmission Control Protocol/Internet Protocol (“TCP/IP”) packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information.
Don’t upload, post, email, transmit or otherwise make available or initiate any communication, Content or data that:
- Falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresents your affiliations with a person or entity, past or present.
- Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable.
- Adds to a data field any information that is not intended for such field (i.e., submitting a telephone number in the “title” or any field other than a field requesting a telephone number).
- Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships, including without limitation any insider information, proprietary information or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements.
- Infringes or misappropriates any patents, trademarks, trade secrets, copyrights or other rights.
Includes any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- Contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy, erase or limit the functionality of any computer software or hardware or telecommunications equipment.
- Forges headers or otherwise manipulates identifiers in order to disguise the origin of any communication.
Services are Not Intended for Children
The Club warrants that each user who has access to and uses the Services is at least 16 years old.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO THE CLUB. DO NOT RELY ON THE SERVICE, OR ANY CONTENT OR INFORMATION ON OR IN THE SERVICE. WE PROVIDE THE SERVICE AND ALL INFORMATION, INCLUDING THE CONTENT, ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IF THE CLUB IS DISSATISFIED OR HARMED BY ANYTHING RELATED TO THE SERVICE, IT MAY STOP USING THE SERVICES AS FURTHER STATED IN THE TERMINATION PROVISION BELOW. TERMINATION IS ITS SOLE AND EXCLUSIVE REMEDY. WE NEITHER WARRANT NOR REPRESENT THAT USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. WE DO NOT GUARANTEE THAT THE SERVICE WILL FUNCTION WITHOUT INTERRUPTION OR WITHOUT ERRORS. IN PARTICULAR, THE OPERATION OF THE SERVICE, INCLUDING THE FITDEGREE WEBSITE OR APPLICATION, MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS. FURTHERMORE, WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONS, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON. WE DO NOT GUARANTEE THAT THE SERVICES, OR ANY COMPUTER HOSTING THE SERVICES, ARE OR WILL BE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL PARTICLES. UNDER NO CIRCUMSTANCES IS FITDEGREE RESPONSIBLE IN ANY WAY FOR THE INFORMATION POSTED ON THE SITE BY THIRD PARTIES NOT UNDER THE DIRECT CONTROL OF FITDEGREE. BY ACCESSING AND/OR USING THE SERVICES, THE CLUB EXPRESSLY AGREES TO ASSUME THE ENTIRE RISK AS TO THE QUALITY AND/OR PERFORMANCE OF THE SERVICES.
THE CLUB FURTHER AGREES TO ASSUME THE RISK TO THE ACCURACY AND QUALITY OF THE CONTENTS OF THE SERVICES.
THE CLUB AGREES AND UNDERSTANDS THAT IT IS FULLY AND COMPLETELY ASSUMING THE RISK AND IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY FILE WHEN USING THE CONTENTS OF THE SERVICES, ANY MATERIAL CONTAINED THEREIN AND/OR DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO THE CLUB.
THE CLUB AGREES AND UNDERSTANDS THAT UNDER NO CIRCUMSTANCES WILL FITDEGREE BE LIABLE FOR ANY LOSS OR DAMAGES RELATED TO THE CLUB’S RELIANCE ON ANY INFORMATION CONTAINED IN OR RELATED TO THE SERVICES. THE CLUB ASSUMES FULL RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE SERVICES.
NEITHER WE NOR ANY OF OUR SUBSIDIARIES, AFFILIATED COMPANIES, OFFICERS, EMPLOYEES, MEMBERS, OR DIRECTORS (“FITDEGREE AFFILIATES”) SHALL BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES, IF ANY, PAID BY THE CLUB TO FITDEGREE DURING THE CALENDAR YEAR IN WHICH SUCH EVENT IS CLAIMED TO HAVE OCCURRED, OR USD $100, WHICHEVER AMOUNT IS GREATER.
NEITHER FITDEGREE NOR ANY FITDEGREE AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO THE CLUB OR ANY THIRD PERSON. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (I) THE CLUB BASES ITS CLAIM ON CONTRACT, TORT, STATUTE OR ANY OTHER LEGAL THEORY, (II) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (III) THE LIMITED REMEDIES PROVIDED IN THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER BASED IN EQUITY, CONTRACT, NEGLIGENCE, OTHER TORTIOUS ACTION, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY), SHALL FITDEGREE, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, GOODWILL, DIMINUTION OF VALUE, BUSINESS INTERRUPTION COSTS, OR ANY OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATED TO, CAUSED BY, OR RESULTING IN ANY WAY FROM DAMAGE FROM ANY SECURITY BREACH OR ANY OTHER SECURITY INTRUSION, COMPUTER LINE OR NETWORK FAILURE, OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
FITDEGREE SHALL BE LIABLE FOR DATA PROTECTION LOSSES (HOWSOEVER ARISING, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) UNDER OR IN CONNECTION WITH THIS POLICY:
ONLY TO THE EXTENT CAUSED BY THE PROCESSING OF PERSONAL DATA UNDER THIS POLICY AND DIRECTLY RESULTING FROM A BREACH OF IT;
IN NO CIRCUMSTANCES TO THE EXTENT THAT ANY DATA PROTECTION LOSSES (OR THE CIRCUMSTANCES GIVING RISE TO THEM) ARE CONTRIBUTED TO OR CAUSED BY ANY BREACH OF THIS POLICY BY THE USER.
FOR THE AVOIDANCE OF DOUBT, THE LIABILITY CAP AND LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS AGREEMENT APPLY SO AS TO LIMIT AND EXCLUDE THE LIABILITY OF FITDEGREE UNDER THIS CLAUSE.
THE CLUB UNDERSTANDS AND AGREES THAT ITS SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO CEASE USING THE SERVICES.
BY ACCESSING AND USING THE SERVICES THE CLUB AGREES TO MAKE FITDEGREE, ITS AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND STRATEGIC PARTNERS WHOLE FOR ANY AND ALL CLAIMS, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES, ARISING FROM AND RELATED TO ITS USE OF THE SERVICES OR ANY VIOLATION OF THE TERMS AND CONDITIONS CONTAINED IN THIS TOS.
IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO THE CLUB’S ACTIONS, CONTENT OR INFORMATION ON FITDEGREE, THE CLUB WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES AND EXPENSES OF ANY KIND (INCLUDING REASONABLE LEGAL FEES AND COSTS) RELATED TO SUCH CLAIM. FITDEGREE PROVIDES RULES OF CONDUCT; HOWEVER, FITDEGREE DOES NOT CONTROL OR DIRECT THE CLUB’S ACTIONS ON THE WEBSITE OR RELATED TO THE SERVICES. FITDEGREE IS NOT RESPONSIBLE FOR THE CONTENT OR INFORMATION THE CLUB TRANSMITS OR SHARES ON FITDEGREE.
FITDEGREE IS NOT RESPONSIBLE FOR ANY OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL, OR OTHERWISE OBJECTIONABLE CONTENT OR INFORMATION THE CLUB MAY ENCOUNTER ON OR RELATED TO THE SERVICES. FURTHERMORE, FITDEGREE IS NOT RESPONSIBLE FOR ANY CONDUCT OF ANY CLUB OF FITDEGREE WHETHER ONLINE OR OFFLINE.
FITDEGREE DOES ITS BEST TO KEEP THE SERVICES BUG/VIRUS FREE AND SAFE. HOWEVER, THE CLUB UNDERSTANDS THAT HE/SHE IS USING FITDEGREE AT THEIR OWN RISK.
fitDEGREE owns all of the content and information the Club posts or creates on the Websites or through the fitDEGREE App or any of the Services provided by fitDEGREE. By visiting the fitDEGREE Websites and/or using the fitDEGREE App or any of the Services provided, the Club agrees to allow fitDEGREE to use any information collected for fitDEGREE’s general business, promotional, advertising, or any other purpose which fitDEGREE deems appropriate.
Furthermore, by using the Services on fitDEGREE, the Club specifically warrants that the information is not covered by intellectual property rights, or that if it is, the Club specifically: grants fitDEGREE a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any intellectual property content that the Club posts on or in connection with fitDEGREE, including the Intellectual Property License.
fitDEGREE claims a copyright in all proprietary and copyright text, graphics and computer code on the website, including, but not limited, to the design of the website and the location and arrangement of all materials on the website. fitDEGREE also claims a copyright in all proprietary and copyrightable text, graphics and computer code associated with the Services. This claim includes and extends to all information contained in the public domain of the Website and the fitDEGREE App. All logos, service marks, trademarks, trade names, and trade dress (whether registered or unregistered) that appear on the Website or Apps are proprietary to fitDEGREE and its owners.
The Club is not permitted or authorized to modify, change or alter any of the material(s) on the Website or any App, nor is it permitted to incorporate any material(s) in whole or in part into another work. The Club is further prohibited from removing any copyright notices, trademarks, trademark notices, or any other proprietary notices. The use of any material(s) from the Service for a commercial purpose requires the express written permission of fitDEGREE. The Club is welcome to request permission by email from fitDEGREE at support@fitdegree.com.
fitDEGREE respects the intellectual property rights of others and expects the Clubs of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law (including the Digital Millennium Copyright or “DMCA” at 17 U.S.C. §512) and are properly provided to us. If the Club believes that its Content has been copied in a way that constitutes copyright infringement, please review the DMCA to ensure the Club’s compliance before it sends us any request to remove allegedly-infringing Content (“Takedown Notice”). Each Takedown Notice must be in English and include the following information:
Identification of the copyrighted work claimed to have been infringed.
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.
Information reasonably sufficient to permit us to locate the material (e.g., a detailed uniform resource locator or “URL”).
The Club’s contact information, including its postal address, telephone number, and an email address.
A statement by the Club that it has a good faith belief that use of the Content or other material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notice is accurate, and, under penalty of perjury, that the Club is authorized to act on behalf of the copyright owner.
A physical or electronic signature of the copyright owner or a person authorized to act on their behalf.
On our receipt of a Takedown Notice, we may publish the Takedown Notice, or provide a copy of the Takedown Notice to the Club that uploaded or provided the Content. For any Takedown Notice that is subject to the provisions of the DMCA, the original provider of the Content may have the right to send a notice to us (“Counter Notice”) demanding that the Content be restored to the Service.
In compliance with the DMCA or other applicable law, we may implement any Takedown Notice by removing the accused Content or other material from public view on the Service, and we may implement any Counter Notice by restoring the accused Content or other material to public view on the Service.
Regardless of the DMCA or other applicable laws or regulations, we reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to the Club or anyone else. In appropriate circumstances, fitDEGREE will also terminate a Club’s account if we determine the Club to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Service is:
fitDEGREE, LLC Attn: Copyright Agent 591 Mantua Blvd | Suite 201 Sewell, NJ 08080 U.S.A.
Email: support@fitdegree.com
The Club agrees to comply with applicable data protection laws in accordance with these ToS. To the extent that any of the work, the delivery of any products, or the performance of any Services by fitDEGREE involve the exchange of Personal Data, as defined by the European Union’s General Data Protection Regulation (Regulation 2016/679) (hereinafter “GDPR”), the Club agrees to notify fitDEGREE prior to the transfer of any such Personal Data. The Club acknowledges and consents to the transfer and processing of any Personal Data by fitDEGREE within the United States. Further, the Club acknowledges that, to the extent required under any applicable data protection laws, it shall enter into a Data Processing Agreement that will govern the processing and transfer of any Personal Data.
The Club can control the privacy settings in its administrative profile. Other than certain private information provided to create a user profile (email address, password), the information provided is considered public.
To the extent that the Club provides Personal Data on behalf of its clients and/or customers to fitDEGREE, the Club acknowledges that the terms of this ToS will apply to the transfer of any such data. Further, the Club is aware that each client and/or customer will be required to agree to a separate Terms of Service in order to access and use the Services.
fitDEGREE Safety & Account Registration/ Security
The Club is responsible for safeguarding the password that it uses to access the Service and for any activities or actions under its username and password. Therefore, the Club must not share or disclose its password with anyone. fitDEGREE recommends that the Club should use a “strong” password for each account, e.g., a password that is not a dictionary term or other word, and combines numbers, upper case letters, lower case letters, and non-alphanumeric characters. The Club acknowledges that passwords may be compromised no matter how strong the password. fitDEGREE is not liable to the Club for any loss or damage arising from any third party accessing or using its account without its permission, regardless of how the third party accesses its account.
Please take precautions to protect the Club’s user name and password, and contact us at support@fitdegree.com if the Club believes its account has been accessed by an unauthorized person or compromised in any fashion.
Protecting Other People's Rights
We respect other people's rights and expect the Club to do the same. The Club will not post content or take any action on fitDEGREE that infringes or violates someone else's rights or otherwise violates the law. We can remove any content or information the Club posts on fitDEGREE if we believe, based solely on our judgment and within our sole and exclusive discretion, that it violates this Statement, our policies or the spirit of the fitDEGREE community.
If we remove the Club’s content for any reason, and the Club believes we removed it by mistake, it has the ability to appeal that decision by sending an email to support@fitdegree.com which explains why it believes that fitDEGREE should permit the content. It is within the sole and exclusive judgment of fitDEGREE whether the content is ultimately determined to be re-posted. If the Club repeatedly infringe other people's legal rights, we reserve the right to disable its account.
Links to Third Party Resources
To the extent that fitDEGREE or any Club provides resources that can be accessed with hypertext links from the Services that are not under the direct control of fitDEGREE, fitDEGREE is not responsible for the contents of those third party resources. These links are merely provided as a courtesy and convenience for our users, Clubs and visitors. The use of a link on the Services does not imply any recommendation, approval or enforcement of third party resources or their business by fitDEGREE.
Subscription Plans / Terms for Clubs
fitDEGREE currently offers three (3) paid-subscription offerings (“Subscription(s)”), on a monthly, or (discounted) annual basis, (each, a “Subscription Plan”) granting access to the Club to use the Services, via the Administrator Platform. For more information regarding Subscription Plans, please visit the fitDEGREE website LINK. fitDEGREE may, in its sole discretion, add, adjust, or remove all or a portion of its Subscription Plans. The Club hereby authorizes fitDEGREE to charge the Club for the subscription fees upon the renewal of an applicable Subscription Plan period (“Recurring Charges”). The Club’s payments for the subscription will be processed through a Third Party Merchant Service (i.e. Splash Payments, Quickbooks, etc.) via Credit Card or ACH. Each Subscription Plan includes restrictions and requirements that outline the features of the Administrator Platform and Services a Club may access, as well as the applicable subscription fee, and termination policies (the “Subscription Terms”). Any violation by the Club of the Subscription Terms may result in the immediate termination of the Club’s Subscription Plan and use of the Administrator Platform, as well as any other potential liability for violation of these ToS. fitDEGREE may, in its sole discretion, reject a Club for any reason or no reason.
Subscription Fees
fitDEGREE charges each Club a subscription fee, which grants such Club access to the Administrator Platform to utilize the Services and market itself on the Platform. The applicable subscription fees are as described on the Platform in certain subscription fee statements provided to each Club, and correspond to the duration of the subscription period a Club selects (the “Subscription Fees”). Subscription Fees are due at the beginning of each subscription period and are not refundable. Subscription Plans shall automatically renew upon the conclusion of a subscription period unless the Club provides fitDEGREE with appropriate notice of cancellation. If fitDEGREE does not receive a Subscription Fee from a Club when due, then fitDEGREE may consider the Subscription terminated by the Club for the Club’s convenience. fitDEGREE may charge other expenses and/or fees upon notice to the Club if and when such additional fees and expenses become applicable.
Changes, Cancellation or Termination of Subscriptions
A Club may switch to a different Subscription Plan at any time during the subscription period in effect. The effective date of the new Subscription Plan will commence on the day immediately following the final day of the preceding subscription period. If a Club wishes to cancel an existing Subscription in its entirety, the Club may do so upon providing fitDEGREE with notice of the cancellation and before the the effective date of the new subscription period. The cancelled Subscription Plan shall terminate as of the final day of the subscription period in effect on the date of Club’s notice of cancellation and the Club will have access to the Administrator Platform for the remaining time of that final subscription period. Upon the effective date of a cancelled Subscription, the Club shall have no further access to the Administrator Platform.
fitDEGREE and the Club agree that on the termination of the Subscription Plan, the Club may request within sixty (60) days of termination that fitDEGREE returns all the Personal Data transferred and the copies thereof to the Club or that fitDEGREE destroys all the Personal Data and certifies to the Club that it has done so, unless legislation imposed upon fitDEGREE prevents fitDEGREE from returning or destroying all or part of the Personal Data transferred. In that case, fitDEGREE warrants that it will guarantee the confidentiality of the Personal Data transferred and will not actively process the Personal Data transferred anymore.
Additional Terms
Our rights: We reserve the right at all times (but will not have an obligation) to remove, or refuse to collect or distribute any Content on the Service, to suspend or terminate users, and to reclaim user names and change passwords without liability to the Club. We also reserve the right to access, read, preserve, and disclose any data, information or other Content as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms and the applicable Club Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of fitDEGREE, its users, Clubs and the public.
Entire Agreement: These Terms, together with the Privacy Notice, which is incorporated herein by this reference as if set forth herein in its entirety, constitute the entire, complete and exclusive agreement between the Club and us regarding the Service, and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of these Terms and the Privacy Notice.
Amendments to these Terms: We reserve the right to modify, supplement or replace these Terms, effective upon no less than thirty (30) days prior written notice to the email address we have for the Club. If we have no email address for the Club, then the modified Terms will take effect thirty (30) days after we post them on our website at www.fitdegree.com or our mobile application. The Club’s use of the Service thirty (30) days after any such update or modification shall confirm its agreement to the modified version of the Terms. If the Club does not want to agree to changes to the Terms, it may terminate its account with us, or otherwise terminate its use of the Service, prior to the modified Terms taking effect, in which case the prior set of Terms in effect as of the date of termination shall continue to control any disputes or other issues that may arise regarding its use of the Service. Only modifications, supplements or replacements of these Terms as stated in this provision shall be valid and effective to amend the Terms. Any other purported amendments shall be void and of no force or effect.
No Informal Waivers, Agreements or Representations: Any failure by any party to act with respect to a breach of these Terms by the Club or others does not waive any right to act with respect to that breach or any subsequent breaches. Except as expressly and specifically contemplated by the Terms, no representations, statements, consents, waivers or other acts or omissions by any party, fitDEGREE or its Affiliates shall be deemed legally binding on the other party or its Affiliates, unless expressly and specifically documented in a writing that refers to the Terms and states expressly the intent to modify or supplement the Terms, and that an authorized officer of fitDEGREE has executed physically or electronically.
Assignment and Delegation: The Club may not assign or delegate any rights or obligations under the Terms. Any purported assignment and delegation by the Club shall be ineffective. We may freely assign or delegate some or all of our rights and obligations under the Terms, Club Agreement and Privacy Notice, effective on sending a notice to the Club at the email address we have for it, or if we have no email address for the Club, by posting a notice of assignment on the Service’s website at.
Choice of Law/ Governing Law & Arbitration Clause
These Terms and any action related thereto will be governed by the law of the State of New Jersey, and the federal laws of the United States of America, without regard to or application of any conflict of laws provisions or principles. Any dispute between us or arising out of these Terms, their performance, or the Service shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules. The language of the arbitration shall be English. To accommodate parties and witnesses that may be distant from each other, each hearing shall be conducted and all testimony shall be entered by audio conference or video conference. The award of the arbitrator shall be final and binding on the parties, and may be entered and enforced in any court or other tribunal of competent jurisdiction. Proceedings will be conducted on an individual basis. Neither the Club, nor fitDEGREE may seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another proceeding without the prior written consent of all parties to the arbitration or proceeding. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and will be administered by the AAA pursuant to its Supplementary Rules for Class Arbitrations, with the remaining parts proceeding in individual arbitration.
Severability
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be illegal, void, or unenforceable, the provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the parties with respect to the provisions within the context of the overall Terms. If a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms will not be affected.
How to Contact Us
If the Club has any questions regarding this Terms of Service please contact us at the information provided below. We will keep a copy of the Club’s message until we have had an opportunity to address its concerns. We may archive the Club’s message for a certain period of time or discard it, but its email address will not be used for any other purpose.
fitDEGREE, LLC Attn: Law Department 591 Mantua Blvd | Suite 201 Sewell, NJ 08080 U.S.A.
Email: support@fitdegree.com
Last updated: September 10, 2018
A Terms of Service (“ToS” or “Terms”) is a statement of rules and a contract between the provider and users which a user must agree to abide by in order to use a service. This ToS was created and prepared by fitDEGREE, LLC, a Delaware limited liability company (“fitDEGREE”, the “Company”, “us”, “we”, or “our”). Please read this ToS carefully before using, visiting www.fitdegree.com, visiting or using our mobile website and any other web-based platforms (collectively, the “Websites”), or downloading and using the fitDEGREE Mobile Application (the “fitDEGREE App”) (collectively, the Websites, fitDEGREE App and any and all services provided by fitDEGREE can be referred to as the “Services” or the “fitDEGREE Services”).
By using or accessing the Services, you agree to this ToS, as updated from time to time by fitDEGREE. If fitDEGREE makes changes to the ToS, we will notify you of the change as described below under “Additional Terms”. If we make changes to policies, guidelines or other terms referenced in or incorporated by this Statement, we may provide notice on the Websites and fitDEGREE App. Your continued use of the Services, following notice of the changes to our terms, policies or guidelines, constitutes your acceptance of our amended terms, policies or guidelines.
fitDEGREE provides certain services and collects a variety of information about the users. As such, fitDEGREE may ask you to review and accept separate terms and conditions that apply to your use and interaction with the fitDEGREE Services. To the extent those supplemental terms and conditions conflict with this ToS, the supplemental terms and conditions govern with respect to your use of such fitDEGREE Services, to the extent they conflict.
If you violate the letter or spirit of this ToS, or otherwise create a risk or possible legal exposure to fitDEGREE, or for any other reason that fitDEGREE, in its sole discretion deems necessary, fitDEGREE can stop providing all or part of the Services to you. fitDEGREE will notify you by the email you provided in your registration for the Services or at the next time you attempt to access your account of any termination of Services.
Your access to and use of the Services is conditioned upon your acceptance of and compliance with these Terms, and any terms, policies, or guidelines referenced herein upon creating a user profile. These Terms apply to all visitors, users and others who access or use the Services. By accessing or using the Services, you agree to be bound by these Terms.
IF YOU DISAGREE WITH ANY PART OF THESE TERMS, YOU MUST EXIT THIS WEBSITE IMMEDIATELY AND DISCONTINUE ANY USE OF THE INFORMATION AND THE SERVICES.
fitDEGREE hereby incorporates by reference any additional terms, conditions and privacy notices to this ToS as if set forth fully herein.
Welcome to fitDEGREE! We provide services via a variety of technologies, including the fitDEGREE Websites and the fitDEGREE App. The technologies that make up the Service may change from time to time.
fitDEGREE provides the service to health clubs, studios, gyms and similar facilities (each, a “Club”) pursuant to a written agreement between fitDEGREE and each Club (“Club Agreement”). Each person who uses the Service is referred to as a “user” or “you” or “your”. Each user obtains access to the Service from a Club pursuant to a Club Agreement. These Terms and the Privacy Notice apply to each user of each Club.
These ToS govern your access to and use of the Service. By accessing or using the Service you agree to be bound by these Terms as if these Terms were signed by you in ink on a hard-copy agreement.
You are invited to use and view the Services available on the fitDEGREE Websites and to use the fitDEGREE Mobile Application and/or any Services associated therewith. fitDEGREE has the ability to collect and store certain data provided by the users of the fitDEGREE App, Websites or any of the Services. The collection and storage of this data is subject to the terms enumerated in fitDEGREE’s Privacy Notice (see below), which is incorporated in this ToS as if set forth at length herein.
Should you encounter any bugs, glitches or other forms of troubleshooting related issues, please contact us by using the fitDEGREE App.
The remainder of this ToS is intended to act as a contract between fitDEGREE and all visitors, users and others who access or use the Services. The terms, restrictions, disclaimers, and other legal notifications will affect the way you use our Services.
As a condition to your right to access and use the Services, you agree to these Terms and to strictly observe the following rules of user conduct (“Rules of Conduct”):
Do comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements.
Do provide accurate information to us and update it as necessary.
Do review and comply with our Privacy Notice and the ToS.
Do review and comply with notices sent by us concerning the Service.
Don’t act dishonestly, inappropriately or unprofessionally by posting inappropriate, inaccurate, or objectionable information or other content (“Content”).
Don’t reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property contained or embedded in or used to provide the Service or the fitDEGREE Content, or any part thereof.
Don’t include information in the Service, except in designated fields, that reveals the identity or sensitive personal information of you or anyone else (i.e., information that identifies you as an individual, “Personal Information”), such as an address, that is confidential in nature.
Don’t use any information, data or Content you view or obtain from our Service to provide any services that are competitive with our Service.
Don’t imply or state, directly or indirectly, that you are affiliated with or endorsed by fitDEGREE, unless you have entered into a written agreement with fitDEGREE that expressly permits you to say that.
Don’t adapt, modify or create derivative works based on any part of the Service or the technology underlying the Service.
Don’t rent, lease, loan, trade, sell or re-sell access to the Service or any Content (other than Content you personally own) or any data on the Service.
Don’t use software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any part of the Service.
Don’t use bots or other automated methods to add or download Content, or send or redirect messages or other permitted activities other than through fitDEGREE-sanctioned tools.
Don’t access the Service for purposes of monitoring its availability, performance or functionality, or for any competitive purpose.
Don’t engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Service.
Don’t access the Service by any means other than through the interfaces provided by fitDEGREE.
Don’t override any security component included in or underlying the Service.
Don’t engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on our infrastructure, including but not limited to, unsolicited communications to other users or fitDEGREE personnel, attempts to gain unauthorized access, or transmission or activation of computer viruses.
Don’t remove any copyright, trademark or other proprietary rights notices contained in or on the Service, including any of our notices or notices of our licensors, or any notices of any other users (for more information, see below under “Website Content, Ownership and Copyright Notice”).
Don’t collect, use or transfer any information, including any Personal Information, obtained from the Service, except as expressly permitted in the Terms or as the owner of the information may expressly permit in writing.
Don’t interfere with or disrupt the Service, including but not limited to any servers or networks connected to the Service.
Don’t infringe or use the Service’s or fitDEGREE’s brands, logos, trademarks or service marks, including, without limitation in any business name, email, or URL.
Don’t access, tamper with, or use non-public areas of the Service, fitDEGREE’s computer systems, or the technical delivery systems of fitDEGREE’s providers.
Don’t forge any Transmission Control Protocol/Internet Protocol (“TCP/IP”) packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information.
Don’t upload, post, email, transmit or otherwise make available or initiate any communication, Content or data that:
- Falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresents your affiliations with a person or entity, past or present.
- Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable.
- Adds to a data field any information that is not intended for such field (i.e., submitting a telephone number in the “title” or any field other than a field requesting a telephone number).
- Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships, including without limitation any insider information, proprietary information or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements.
- Infringes or misappropriates any patents, trademarks, trade secrets, copyrights or other rights.
- Includes any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- Contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy, erase or limit the functionality of any computer software or hardware or telecommunications equipment. Forges headers or otherwise manipulates identifiers in order to disguise the origin of any communication.
You must be at least 16 years old to use the Service. By using the Services, you warrant that you have the right, authority and capacity to enter into these Terms as a binding agreement.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. DO NOT RELY ON THE SERVICE, OR ANY CONTENT OR INFORMATION ON OR IN THE SERVICE. WE PROVIDE THE SERVICE AND ALL INFORMATION, INCLUDING THE CONTENT, ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY ANYTHING RELATED TO THE SERVICE, YOU MAY STOP USING THE SERVICES AS FURTHER STATED IN THE TERMINATION PROVISION BELOW. TERMINATION IS YOUR SOLE AND EXCLUSIVE REMEDY. WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. WE DO NOT GUARANTEE THAT THE SERVICE WILL FUNCTION WITHOUT INTERRUPTION OR WITHOUT ERRORS. IN PARTICULAR, THE OPERATION OF THE SERVICE, INCLUDING THE FITDEGREE WEBSITE OR APPLICATION, MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS. FURTHERMORE, WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONS, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON. WE DO NOT GUARANTEE THAT THE SERVICES, OR ANY COMPUTER HOSTING THE SERVICES, ARE OR WILL BE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL PARTICLES. UNDER NO CIRCUMSTANCES IS FITDEGREE RESPONSIBLE IN ANY WAY FOR THE INFORMATION POSTED ON THE SITE BY THIRD PARTIES NOT UNDER THE DIRECT CONTROL OF FITDEGREE. BY ACCESSING AND/OR USING THE SERVICES, YOU EXPRESSLY AGREE TO ASSUME THE ENTIRE RISK AS TO THE QUALITY AND/OR PERFORMANCE OF THE SERVICES. YOU FURTHER AGREE TO ASSUME THE RISK TO THE ACCURACY AND QUALITY OF ITS CONTENTS.
YOU AGREE AND UNDERSTAND THAT YOU ARE FULLY AND COMPLETELY ASSUMING THE RISK AND ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY FILE WHEN USING THE CONTENTS OF THE SERVICES, ANY MATERIAL CONTAINED THEREIN AND/OR DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
YOU AGREE AND UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL FITDEGREE BE LIABLE FOR ANY LOSS OR DAMAGES RELATED TO YOUR RELIANCE ON ANY INFORMATION CONTAINED IN OR RELATED TO THE SERVICES. YOU ASSUME FULL RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE SERVICES.
NEITHER WE NOR ANY OF OUR SUBSIDIARIES, AFFILIATED COMPANIES, OFFICERS, EMPLOYEES, MEMBERS, OR DIRECTORS (“FITDEGREE AFFILIATES”) SHALL BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES, IF ANY, PAID BY YOUR CLUB TO FITDEGREE DURING THE CALENDAR YEAR IN WHICH SUCH EVENT IS CLAIMED TO HAVE OCCURRED, OR USD $100, WHICHEVER AMOUNT IS GREATER.
NEITHER FITDEGREE NOR ANY FITDEGREE AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO YOU OR ANY THIRD PERSON. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (I) YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE OR ANY OTHER LEGAL THEORY, (II) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (III) THE LIMITED REMEDIES PROVIDED IN THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER BASED IN EQUITY, CONTRACT, NEGLIGENCE, OTHER TORTIOUS ACTION, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY), SHALL FITDEGREE, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, GOODWILL, DIMINUTION OF VALUE, BUSINESS INTERRUPTION COSTS, OR ANY OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATED TO, CAUSED BY, OR RESULTING IN ANY WAY FROM DAMAGE FROM ANY SECURITY BREACH OR ANY OTHER SECURITY INTRUSION, COMPUTER LINE OR NETWORK FAILURE, OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
FITDEGREE SHALL BE LIABLE FOR DATA PROTECTION LOSSES (HOWSOEVER ARISING, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) UNDER OR IN CONNECTION WITH THIS POLICY:
ONLY TO THE EXTENT CAUSED BY THE PROCESSING OF PERSONAL DATA UNDER THIS POLICY AND DIRECTLY RESULTING FROM A BREACH OF IT;
IN NO CIRCUMSTANCES TO THE EXTENT THAT ANY DATA PROTECTION LOSSES (OR THE CIRCUMSTANCES GIVING RISE TO THEM) ARE CONTRIBUTED TO OR CAUSED BY ANY BREACH OF THIS POLICY BY THE USER.
FOR THE AVOIDANCE OF DOUBT, THE LIABILITY CAP AND LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS AGREEMENT APPLY SO AS TO LIMIT AND EXCLUDE THE LIABILITY OF FITDEGREE UNDER THIS CLAUSE.
YOU UNDERSTAND AND AGREE THAT YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO CEASE USING THE SERVICES.
BY ACCESSING AND USING THE SERVICES YOU AGREE TO MAKE FITDEGREE, ITS AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND STRATEGIC PARTNERS WHOLE FOR ANY AND ALL CLAIMS, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES, ARISING FROM AND RELATED TO YOUR USE OF THE SERVICES OR ANY VIOLATION OF THE TERMS AND CONDITIONS CONTAINED IN THIS TOS.
IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO YOUR ACTIONS, CONTENT OR INFORMATION ON FITDEGREE, YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES AND EXPENSES OF ANY KIND (INCLUDING REASONABLE LEGAL FEES AND COSTS) RELATED TO SUCH CLAIM. FITDEGREE PROVIDES RULES OF CONDUCT; HOWEVER, FITDEGREE DOES NOT CONTROL OR DIRECT USERS’ ACTIONS ON THE WEBSITE OR RELATED TO THE SERVICES. FITDEGREE IS NOT RESPONSIBLE FOR THE CONTENT OR INFORMATION USERS TRANSMIT OR SHARE ON FITDEGREE.
FITDEGREE IS NOT RESPONSIBLE FOR ANY OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL, OR OTHERWISE OBJECTIONABLE CONTENT OR INFORMATION YOU MAY ENCOUNTER ON OR RELATED TO THE SERVICES. FURTHERMORE, FITDEGREE IS NOT RESPONSIBLE FOR ANY CONDUCT OF ANY USER OF FITDEGREE WHETHER ONLINE OR OFFLINE.
FITDEGREE DOES ITS BEST TO KEEP THE SERVICES BUG/VIRUS FREE AND SAFE. HOWEVER, THE USER UNDERSTANDS THAT HE/SHE IS USING FITDEGREE AT THEIR OWN RISK.
fitDEGREE owns all of the content and information you post or create on the Websites or through the fitDEGREE App or any of the Services provided by fitDEGREE. By visiting the fitDEGREE Websites and/or using the fitDEGREE App or any of the Services provided, you agree to allow fitDEGREE to use any information collected for fitDEGREE’s general business, promotional, advertising, or any other purpose which fitDEGREE deems appropriate.
Furthermore, by using the Services on fitDEGREE, you specifically warrant that the information is not covered by intellectual property rights, or that if it is, you specifically grant fitDEGREE a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any intellectual property content that you post on or in connection with fitDEGREE, including the Intellectual Property License.
fitDEGREE claims a copyright in all proprietary and copyrightable text, graphics and computer code on the website, including, but not limited, to the design of the website and the location and arrangement of all materials on the website. fitDEGREE also claims a copyright in all proprietary and copyrightable text, graphics and computer code associated with the Services. This claim includes and extends to all information contained in the public domain of the Website and the fitDEGREE App. All logos, service marks, trademarks, trade names, and trade dress (whether registered or unregistered) that appear on the Website or Apps are proprietary to fitDEGREE and its owners.
You are not permitted or authorized to modify, change or alter any of the material(s) on the Website or any App, nor are you permitted to incorporate any material(s) in whole or in part into another work. You are further prohibited from removing any copyright notices, trademarks, trademark notices, or any other proprietary notices. The use of any material(s) from the Service for a commercial purpose requires the express written permission of fitDEGREE. You are welcome to request permission by email from fitDEGREE at info@fitdegree.com.
fitDEGREE respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law (including the Digital Millennium Copyright or “DMCA” at 17 U.S.C. §512) and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please review the DMCA to ensure your compliance before you send us any request to remove allegedly-infringing Content (“Takedown Notice”). Each Takedown Notice must be in English and include the following information:
Identification of the copyrighted work claimed to have been infringed.
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. Information reasonably sufficient to permit us to locate the material (e.g., a detailed uniform resource locator or “URL”).
Your contact information, including your postal address, telephone number, and an email address.
A statement by you that you have a good faith belief that use of the Content or other material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notice is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
A physical or electronic signature of the copyright owner or a person authorized to act on their behalf.
On our receipt of a Takedown Notice, we may publish the Takedown Notice, or provide a copy of the Takedown Notice to the user that uploaded or provided the Content. For any Takedown Notice that is subject to the provisions of the DMCA, the original provider of the Content may have the right to send a notice to us (“Counter Notice”) demanding that the Content be restored to the Service.
In compliance with the DMCA or other applicable law, we may implement any Takedown Notice by removing the accused Content or other material from public view on the Service, and we may implement any Counter Notice by restoring the accused Content or other material to public view on the Service.
Regardless of the DMCA or other applicable laws or regulations, we reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you or anyone else. In appropriate circumstances, fitDEGREE will also terminate a user’s account if we determine the user to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Service is:
fitDEGREE, LLC Attn: Copyright Agent 591 Mantua Blvd | Suite 201 Sewell, NJ 08080 U.S.A.
Email: support@fitdegree.com
You can control the privacy settings in your individual profile. Other than certain private information provided to create a user profile (email address, password), the information provided is considered public.
If your account/profile has been established by your Club or studio for use in accordance with the Agreement you entered into with the Club (that is, you have received your log-in credentials from the Club directly), your Club has collected and shared your Personal Information with fitDEGREE in order to provide you with the Services. fitDEGREE uses the information provided by the Club to create your log-in credentials.
You can also set up your profile/account with fitDEGREE directly, in which case you receive the log-in credentials from fitDEGREE directly and in which circumstance fitDEGREE does not receive any Personal Information about you by the Club exporting member information to fitDEGREE.
You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your user name and password. Therefore, you must not share or disclose your password with anyone. fitDEGREE recommends that you should use a “strong” password for each account, e.g., a password that is not a dictionary term or other word, and combines numbers, upper case letters, lower case letters, and non-alphanumeric characters. You acknowledge that passwords may be compromised no matter how strong the password. fitDEGREE is not liable to you for any loss or damage arising from any third party accessing or using your account without your permission, regardless of how the third party accesses your account.
Please take precautions to protect your user name and password, and contact us at support@fitdegree.com if you believe your account has been accessed by an unauthorized person or compromised in any fashion.
We respect other people's rights and expect you to do the same. You will not post content or take any action on fitDEGREE that infringes or violates someone else's rights or otherwise violates the law. We can remove any content or information you post on fitDEGREE if we believe, based solely on our judgment and within our sole and exclusive discretion, that it violates this Statement, our policies or the spirit of the fitDEGREE community.
If we remove your content for any reason, and you believe we removed it by mistake, you have the ability to appeal that decision by sending an email to support@fitdegree.com which explains why you believe that fitDEGREE should permit the content. It is within the sole and exclusive judgment of fitDEGREE whether the content is ultimately determined to be re-posted. If you repeatedly infringe other people's legal rights, we reserve the right to disable your account.
To the extent that fitDEGREE or any user or Club provides resources that can be accessed with hypertext links from the Services that are not under the direct control of fitDEGREE, fitDEGREE is not responsible for the contents of those third party resources. These links are merely provided as a courtesy and convenience for our users and visitors. The use of a link on the Services does not imply any recommendation, approval or enforcement of third party resources or their business by fitDEGREE.
You may terminate your use of the Services at any time for any reason. In the event of any termination, fitDEGREE shall be entitled to payment for the Services in accordance with this ToS. At termination, you may request that fitDEGREE transfer or delete your Personal Information. Such request must be made within sixty (60) days of termination.
Our rights: We reserve the right at all times (but will not have an obligation) to remove, or refuse to collect or distribute any Content on the Service, to suspend or terminate users, and to reclaim user names and change passwords without liability to you. We also reserve the right to access, read, preserve, and disclose any data, information or other Content as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms and the applicable Club Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of fitDEGREE, its users and the public.
Entire Agreement: These Terms, together with the Privacy Notice, which is incorporated herein by this reference as if set forth herein in its entirety, constitute the entire, complete and exclusive agreement between you and us regarding the Service, and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of these Terms and the Privacy Notice.
Amendments to these Terms: We reserve the right to modify, supplement or replace these Terms, effective upon no less than thirty (30) days prior written notice to the email address we have for you. If we have no email address for you, then the modified Terms will take effect thirty (30) days after we post them on our website at www.fitdegree.com or our mobile application. Your use of the Service thirty (30) days after any such update or modification shall confirm your agreement to the modified version of the Terms. If you do not want to agree to changes to the Terms, you may terminate your account with us, or otherwise terminate your use of the Service, prior to the modified Terms taking effect, in which case the prior set of Terms in effect as of the date of termination shall continue to control any disputes or other issues that may arise regarding your use of the Service. Only modifications, supplements or replacements of these Terms as stated in this provision shall be valid and effective to amend the Terms. Any other purported amendments shall be void and of no force or effect.
No Informal Waivers, Agreements or Representations: Any failure by any party to act with respect to a breach of these Terms by you or others does not waive any right to act with respect to that breach or any subsequent breaches. Except as expressly and specifically contemplated by the Terms, no representations, statements, consents, waivers or other acts or omissions by any party, fitDEGREE or its Affiliates shall be deemed legally binding on the other party or its Affiliates, unless expressly and specifically documented in a writing that refers to the Terms and states expressly the intent to modify or supplement the Terms, and that an authorized officer of fitDEGREE has executed physically or electronically.
Assignment and Delegation: You may not assign or delegate any rights or obligations under the Terms. Any purported assignment and delegation by you shall be ineffective. We may freely assign or delegate some or all of our rights and obligations under the Terms, Club Agreement and Privacy Notice, effective on sending a notice to you at the email address we have for you, or if we have no email address for you, by posting a notice of assignment on the Service’s website at.
These Terms and any action related thereto will be governed by the law of the State of New Jersey, and the federal laws of the United States of America, without regard to or application of any conflict of laws provisions or principles. Any dispute between us or arising out of these Terms, their performance, or the Service shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules. The language of the arbitration shall be English. To accommodate parties and witnesses that may be distant from each other, each hearing shall be conducted and all testimony shall be entered by audio conference or video conference. The award of the arbitrator shall be final and binding on the parties, and may be entered and enforced in any court or other tribunal of competent jurisdiction. Proceedings will be conducted on an individual basis. Neither you, your Club, nor fitDEGREE may seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another proceeding without the prior written consent of all parties to the arbitration or proceeding. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and will be administered by the AAA pursuant to its Supplementary Rules for Class Arbitrations, with the remaining parts proceeding in individual arbitration.
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be illegal, void, or unenforceable, the provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the parties with respect to the provisions within the context of the overall Terms. If a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms will not be affected.
If you have any questions regarding this Terms of Service please contact us at the information provided below. We will keep a copy of your message until we have had an opportunity to address your concerns. We may archive your message for a certain period of time or discard it, but your email address will not be used for any other purpose.
fitDEGREE, LLC Attn: Law Department 591 Mantua Blvd | Suite 201 Sewell, NJ 08080 U.S.A.
Email: support@fitdegree.com
Last updated: September 10, 2018
Welcome to fitDEGREE! Your Privacy is very important to us and fitDEGREE, LLC, a Delaware limited liability company (“fitDEGREE”, “we”, “us”, and “our”), is committed to conducting our business in accordance with privacy principles in order to ensure that the confidentiality of personal information is protected and maintained.
This Privacy Notice applies to the fitDEGREE Websites (www.fitdegree.com); our mobile website and any other web-based platforms; the fitDEGREE Mobile Application and the fitDEGREE Administrator Platform (collectively, the “Websites”) and governs our data collection, processing and usage. Access to and use of the Websites, and the services provided on the Website (collectively, the “Service”), will be subject to this Privacy Notice as set forth below.
We gather various types of information, including information that identifies you as an individual (“Personal Information”) from our users, as explained in more detail below.
Registration information. When you create or reconfigure an account, you provide us with Personal Information, such as your name, birthday, password and email address. Some of this information, for example, your name, may be listed publicly on our Service, including on your profile page and in search results (if applicable). We will not share your email address or password. In order to register for an account to use our Services, you will be asked to set up a new account with, at a minimum, your first name (last name optional), email address, password, gender and birthday.
Profile information. You may further provide us with additional optional profile information to make public, such as your last name, a short description of yourself, your location and/or a picture. You may also provide information to customize your account, such as a cell phone number for the delivery of short message system (“SMS”) or text messages, from either fitDEGREE or another user/studio. We may use your contact information to send you information about our Service or to market to you. We may also use your contact information, with your express consent, to connect you with other “friends” you may have using the fitDEGREE Services.
Although you are not required to provide us with a location, the Service may not function properly without providing us with a location. Your location enables us to suggest fitSPOTS, the studio locations, near you. If you do not provide us with a location you may, however, still be able to use the app to find where fitSPOTS are located near you by using the spotlight search feature within the app.
You may use your account settings to customize notifications from fitDEGREE. Each notification can be individually turned off in your profile on the fitDEGREE App
Social Media Information. You may provide us with your information from your Facebook, Twitter, Instagram or other social media account (“Social Media”) in order to enable you to send posts and direct messages via these Social Media accounts to notify your networks of your use of fitDEGREE. If you elect to provide us with your Social Media accounts, you authorize us to access certain Social Media account information, including your social media handle, user name and geo-location. By allowing us to access your Social Media accounts, you understand that we will obtain and share your user name and a profile picture from each account with other users. All data shared with or processed via Social Media is subject to each Social Media provider’s Privacy Notice. You can elect to “un-share” this information with us by changing the settings in your fitDEGREE profile.
Location Information. You may tell us your location (but you are not required to do so) when you set your location settings via the fitDEGREE application by providing us with a general locale (e.g., New York City), or enable your computer or mobile device to send us specific location information (i.e., via a global positioning system (“GPS”)). We may use and store information about your location to provide features of our Service, to determine the appropriate content to show you, and to improve and customize the Service.
Communications between you and other fitDEGREE users. The fitDEGREE Mobile Application allows you to communicate directly with other fitDEGREE users through the Mobile Application. Copies of communications between users will be stored on fitDEGREE’s servers and displayed on user’s phones. You may delete communications between individual users and group communications. In order to permanently delete this communications, you can contact fitDEGREE at support@fitdegree.com.
Communications between you and fitDEGREE. If you email us, we may keep your message, email address and contact information to respond to your request. Providing the additional information described in this paragraph is entirely optional. We may send you Service-related emails (e.g., account verification, changes/updates to features of the Service, technical and security notices), and we may collect and store these communications. Note that you may not opt out of Service-related emails from us.
You can control the use of the information you provide us by changing your Privacy Settings in your profile, as described below under “Your Privacy Rights”.
Analytics. We use third-party analytics tools to help us measure traffic and usage trends and other Non-Personal Information for the Service (e.g. date and time when you log in and log out of the app) (“Third-Parties”). These tools collect information sent by your device or our Service, including the web pages you visit, add-ons, and other information that assist us in improving the Service. We collect and combine this analytics information with analytics information from other users so that it cannot be used to identify any particular individual user. For further information on how we share information with third-parties, see below.
Metadata. Metadata is usually technical data that is associated with other data, including content. For example, metadata can describe how, when and by whom a piece of content was collected and how that content is formatted. We may store metadata to provide you with particular services. The collection, use, and storage of this metadata can be controlled as described below in the “Cookie Policy.”
Device Identifiers. For each device you use to access our Service (e.g., laptop computer, mobile phone, tablet), we may access, collect, monitor, store on your device, or remotely store one or more "device identifiers." Device identifiers are small data files or similar data structures stored on or associated with your device, which uniquely identify your device. A device identifier may be data stored in connection with the device hardware, data stored in connection with the device's operating system or other software, or data sent to the device by fitDEGREE. In the alternative, a device identifier may be a serial number or other identification associated with a particular type of device or part that is unique to your device (e.g., a “media access control” number or “MAC”) that we store to identify and differentiate different devices. A device identifier may be used to deliver information to us or to a third-party partner about how you browse and use the Service and may help us or others provide reports or personalized content and ads. Some features of the Service may not function properly if use or availability of device identifiers is impaired or disabled. The collection, use, and storage of these device identifiers can be controlled as described below in the “Cookie Policy.”
Log Data. Our servers automatically record information ("Log Data") created by your use of the Service. Log Data may include information such as your Internet Protocol (“IP”) address, browser type, operating system, the referring web page, pages visited, location, your mobile carrier, device and application IDs, search terms, and cookie information. We receive Log Data when you interact with our Service, for example, when you visit our website, sign into our Service or interact with our email notifications. fitDEGREE uses Log Data to provide our Service and to measure, customize, and improve the Service. The collection, use, and storage of this Log Data can be controlled as described below in the “Cookie Policy.”
We provide the Service from within the United States, and we store all Personal Information that we currently collect, process, and retain on servers located within the United States. In the future, we reserve the right to store Personal Information on servers located outside the United States.
Privacy laws outside of the United States may be more stringent than the privacy laws within the United States that apply to fitDEGREE. By providing fitDEGREE with your Personal Information, you consent to the storage and processing of your personal information in the United States as further stated in the current version of this Privacy Notice. fitDEGREE reserves the right to update its Privacy Notice from time to time.
Certain types of content you submit to us might reveal your gender, ethnic origin, nationality, age, religion, sexual orientation, or other Personal Information about you or others. By using our Service, or by submitting your Personal Information to us, you consent to the collection, storage, processing and onward transfer of your Personal Information as stated in the current version of this Privacy Notice and the current version of the Terms of Use (“Terms”).
We only share your Personal Information in the following limited circumstances:
With Your Consent. We will share Personal Information with companies, organizations or individuals outside of fitDEGREE when we have your consent to do so.
Other fitDEGREE Users. Each user is sharing personal information with us. This allows users to connect with others (“make friends”) and invite friends to classes. You are solely responsible for your interactions with other users, and to protect your own well-being and safety. fitDEGREE does not conduct background checks or screen its users. fitDEGREE is not responsible for the conduct of any user. You agree to take all necessary precautions in any interaction with another user. Accordingly, we suggest that the first several meetings and work-outs should be in public locations that are frequented by large numbers of people. During the first few meetings and work-outs you should not share more personal information than you need to.
If you provide fitDEGREE with a phone number or other contact information, we may use your contact information to connect you with other “friends” you may have using the fitDEGREE Services with your express consent. You can control the use of your contact information in this manner by changing the settings of your profile.
Affiliates of fitDEGREE. We may share your Personal Information with our fitDEGREE affiliates (meaning entities controlled by, controlling or under common control with fitDEGREE) as necessary to provide the Service.
Advertisers. fitDEGREE currently permits advertising through our Service. To the extent we display advertising on fitDEGREE, we may allow advertisers and advertising networks to collect information about your mobile device (including mobile device IDs), activities, and geographic location to enable them to display targeted ads to you. We will not provide any personally identifiable information (such as your name or email address) to advertisers. Some advertisers may contact users outside of the fitDEGREE mobile app. You can control the collection of information by Advertisers through your profile and under the “Cookie Policy” below.
Service Providers. We may employ third party companies and individuals to facilitate our Service (e.g., maintenance, analysis, audit, marketing and development). These third parties may have limited access to your information only to perform these tasks on our behalf and are obligated to fitDEGREE not to disclose or use it for other purposes.
Required by Law. We may access, preserve and share your Personal Information in response to a legal request (like a search warrant, court order or subpoena). We may also access, preserve and share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; and to prevent death or imminent bodily harm. Information we receive about you may be accessed, processed and retained for an extended period of time when it is the subject of a legal request or obligation, governmental investigation, or investigations concerning possible violations of our terms or policies, or otherwise to prevent harm.
Change of Control/Business Transfers. If we sell or otherwise transfer part or the whole of fitDEGREE or our assets to another organization (e.g., in the course of a transaction like a merger, acquisition, bankruptcy, dissolution, liquidation), your Personal Information such as user name and email address, Content and any other information collected through the Service may be on of the assets sold or transferred to a third party. Any such sale, transfer, or otherwise sharing of our assets shall be subject to the restrictions of this Privacy Notice and any applicable data protection laws. You will continue to own your Content, but the license you granted in the Terms may be transferred to others.
Non-Personal Information. We may share aggregated information that is not personally-identifiable information (“Non-Personal Information”) publicly and with publishers, marketers, advertisers or connected sites. For example, we may share Non-Personal Information publicly to show trends about the general use of our services. Non-Personal Information includes collective information about multiple users that does not reflect or reference an individually-identifiable user.
Additional Disclosures. We reserve the right to disclose personal information about you with your permission, as required by law, as necessary to enforce our Terms of Service or Privacy Notice, to investigate or defend against third-party claims or allegations, to protect the security and integrity of our Services and property, to protect our rights or personal safety and that of our users or others and to respond to valid requests by public authorities, including to meet national security or law enforcement requirements.
Other. In addition to some of the specific uses of information we describe in this Privacy Notice above, we may use your Personal Information that we receive to:
help you efficiently access your information after you sign in.
remember information so you will not have to re-enter it during your visit or the next time you visit the Service. provide personalized content and information to you and others, which, in the future, could include online ads or other forms of marketing.
provide, improve, test, and monitor the effectiveness of our Service.
develop and test new products and features.
monitor metrics such as total number of visitors, traffic, and demographic patterns.
diagnose or fix technology problems.
Our Websites may use “cookies” and other tracking mechanisms (e.g., device identifiers, metadata and Log Data) to collect information about you when you visit our Websites. Certain of those cookies (noted below) are necessary for the functioning of the Websites and Services, and as such, cannot be denied if your visit and/or use the Websites or Services. For permissive cookies (noted below), you can control the use of those permissive cookies directly via your browser settings. Below are links to instructions for certain browsers on how to manage cookies.
About cookies. A cookie is a file containing an identifier (a string of letters and numbers) that is sent by a web server to a web browser and is stored by the browser. The identifier is then sent back to the server each time the browser requests a page from the server.
Cookies may be either "persistent" cookies or "session" cookies: a persistent cookie will be stored by a web browser and will remain valid until its set expiry date, unless deleted by the user before the expiry date; a session cookie, on the other hand, will expire at the end of the user session, when the web browser is closed.
Cookies do not typically contain any information that personally identifies a user, but Personal Information that we store about you may be linked to the information stored in and obtained from cookies.
Cookies that we use. As explained in more detail below, fitDEGREE and certain third-parties may send one or more cookies to your browser to help customize your experience on our Websites or Services or to provide you with ads that may be of interest to you.
We use cookies for the following purposes:
Authentication and Personalization - we use cookies to identify you when you visit our Websites and as you navigate our Websites and Services and to store information about your preferences and to personalize our Websites and Services for you.
Security - we use cookies as an element of the security measures used to protect user accounts, including preventing fraudulent use of login credentials, and to protect our Websites and Services generally.
Advertising - we use cookies to help us to display content that will be relevant to you.
Analysis - we use cookies to help us to analyze the use and performance of our Websites and Services.
The fitDEGREE cookies you may encounter on our Websites and Services include, but are not limited to:
You may review the cookies in use by fitDEGREE and third-party service providers at any time by viewing site information from your browser. This is typically displayed to the left of the address bar of your browser.
Managing cookies. Most browsers allow you to refuse or accept cookies and to delete cookies. The methods for doing so vary from browser to browser, and from version to version. Blocking all cookies will have a negative impact upon the usability of many websites. You are able to control and manage cookies directly through your browser settings. Please note that if you choose to refuse cookies you may not be able to use the full functionality of our Websites. The settings to change the cookies will typically be found in the "options" or "preferences" menu of your browser. Please refer to your browser's privacy or help documentation to find instructions for blocking or deleting cookies in your browser. In order to understand these settings, the following links may be helpful.
Strictly Necessary Cookies: fitDEGREE’s Websites use cookies that are strictly necessary to the provision of the Services. These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you on the Website. These cookies include:
We do not rent or sell your Personal Information to anyone. We may share your information with third party vendors, consultants and other service providers (“Service Providers”) who we employ to perform tasks on our behalf. These companies include (for example) our payment processing provider (“Splash Payments”, described below), website analytics companies (e.g., Google Analytics, and Facebook Pixel, both described below), product feedback or help desk software providers, CRM service providers (e.g. “Drip”, with their Privacy Policy available here, and “Infusionsoft”, with their Privacy Policy available here), email service providers, text messaging service providers (e.g. “Twilio”) and others.
We utilize Google Analytics, a web analysis service provided by Google, to better understand your use of our Websites and Services. Google Analytics collects information such as how often users visit the Websites, what pages they visit and what other sites they used prior to visiting. Google uses the data collected to track and examine the use of the Websites, to prepare reports on its activities and share them with other Google services. Google may use the data collected on the Websites to contextualize and personalize the ads of its own advertising network. Google’s ability to use and share information collected by Google Analytics about your visits to the Websites is restricted by the Google Analytics Terms of Use and the Google Privacy Notice. Google offers an opt-out mechanism for the web available here.
We use Facebook Pixel to measure, optimize and build audiences for our Services. When you visit our Websites and take an action (i.e., signing up to fitDEGREE, signing up for studio classes), the Facebook Pixel tracks this action and reports this non-identified information to fitDEGREE to create tailored marketing initiatives. If a user visits our Websites or Services via a conversion from Facebook, Facebook may collect, process, and store information related to that user in the form of a cookie or other type of mechanism in order to optimize the delivery of future advertisements. For additional information regarding how Facebook Pixel collects, processes, and stores Personal Information, please visit the Facebook Privacy Policy.
We use Leadpages to generate leads and provide other conversion pages to our Websites and Services. If a user visits our Websites or Services via a conversion from Leadpages, Leadpages may collect, process, and store information related to that user in the form of a cookie or other type of mechanism. For additional information regarding how Leadpages collects, processes, and stores Personal Information, please visit their Privacy Policy.
We utilize Amazon Web Services (“AWS”) and MySQL Workbench (“MySQL”) to store Personal Information. Neither AWS nor MySQL have access to this Personal Information and any processing and/or accessing of Personal Information is controlled solely by fitDEGREE.
We use Splash Payments to process payment information for users of our Services. fitDEGREE does not collect, process, access or store any payment card information. When a user inputs credit card information into the fitDEGREE Website or App, it is entered directly into an embedded Splash Payments’ portal directly on the fitDEGREE interface. Information is being transferred via a secure connection to Splash Payments servers. fitDEGREE is provided with a token representing that information in exchange, which fitDEGREE refers to for future purchases. Additional information regarding Splash Payments and its processing of Personal Information can be found in their Splash Payments Privacy Policy.
We do not share any Personal Information with these Service Providers without your express consent, which can be reviewed and changed in your user profile.
We take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, and implement appropriate technical, physical and organizational measures to ensure an appropriate level of security to protect the personal information that we collect and process, both while in transit and while in storage. No method of transmission over the Internet or method of electronic storage is 100% secure, however. Therefore, while we use reasonable security safeguards to protect your personal information, we cannot guarantee absolute security.
You can always opt not to disclose information to fitDEGREE. However, some information may be needed to use our Services. Profile Privacy Settings. Any information or content that you voluntarily disclose for use of the Service, such as your name or your Personal Information, becomes available to the public, as controlled by any applicable privacy settings that you set. To change your privacy settings on the Service, please change your profile setting. Once you have shared your Personal Information, or otherwise made it public, that Personal Information may be re-shared by others.
Cookies. You can accept or reject cookies through adjusting the settings in your browser, as described above. Marketing Communications. At any time, you can withdraw your consent and opt-out of receiving promotional or marketing communications from fitDEGREE at any time, by using the unsubscribe link in the emails communications or by emailing us at support@fitdegree.com.
If you have any account for our Services, fitDEGREE will continue to send you non-promotional communications, like service related emails.
Exercising Your Data Subject Rights. You have the right to access, review, update, rectify, and delete any Personal Information that fitDEGREE holds about you, or exercise any other data subject rights available to you under applicable data protection laws. In order to exercise your data subject rights, you can submit a request via support@fitdegree.com. fitDEGREE’s Privacy Team will review any request and respond within a reasonable time.
De-Identified Personal Information. Please note that we may still use any aggregated and de-identified Personal Information that does not identify any individual. fitDEGREE will also retain any Personal Information to the extent necessary to comply with fitDEGREE’s legal obligations, resolve disputes, and enforce fitDEGREE’s agreements, as outlined in this Privacy Notice.
Personal Information you submit on the Websites or through the Services is transferred to the United States and will be primarily processed and stored by us in the United States. If you choose to use our Websites or Services from regions outside the United States that have laws governing data collection and use that differ from U.S. law, you acknowledge and agree that you are transferring personal information outside of that region to the United States and, by providing such information, you consent to the use of your personal data as identified in this Privacy Notice and the transfer of your personal data to the United States.
California residents are entitled to ask us for a notice identifying the categories of Personal Information which we share with our affiliates and/or third parties for marketing purposes, and providing contact information for such affiliates and/or third parties. If you are a California resident and would like a copy of this notice, please submit a written request to support@fitdegree.com or send the request to
fitDEGREE, LLC Attention: Privacy 591 Mantua Blvd | Suite 201 Sewell, NJ 08080 U.S.A.
Pursuant to the relevant California Civil Code, fitDEGREE does not share users’ Personal Information with affiliate companies or others outside fitDEGREE for those parties’ direct marketing use unless a user elects that we do so.
We do not knowingly collect or solicit personal information from anyone under the age of 16. If you are under 16, please do not attempt to register for the Services or send any Personal Information about yourself to us. If we learn that we have collected Personal Information from a child under the age of 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us Personal Information, please contact us at support@fitdegree.com.
The Websites may contain links to other sites that users may find interesting. Please be aware that we are not responsible for the privacy practices of such other sites, including their views or the accuracy of information contained on their site or servers. We encourage our users to be aware when they leave our site and to read the privacy statements of each and every website that collects personally identifiable information. This Privacy Notice applies solely to information collected by our Website, Application or Services.
We reserve the right to change or modify this Privacy Notice from time to time. We will alert you to material changes by, for example, placing a notice on our Websites and/or by sending you an email (if you have registered your email details with us) when we are required to do so by applicable law. You can see when this Privacy Notice was last updated by checking the date at the top of this page. You are responsible for periodically reviewing this Privacy Notice.
If you have any questions or concerns regarding our Privacy Notice, please contact us at support@fitdegree.com or by postal mail addressed to the following address and our Privacy team will respond within a reasonable time:
fitDEGREE, LLC Attention: Privacy 591 Mantua Blvd | Suite 201 Sewell, NJ 08080 U.S.A.
This Data Processing Agreement (“DPA”) forms part of the Master Service Agreement (“Agreement”) between fitDEGREE, LLC, (“fitDEGREE” or “Processor”) and the Client (“Client”). This DPA is effective as of May 25, 2018 (the “Effective Date”). Collectively, fitDEGREE and the Client shall be referred to as “the Parties.”
The Parties agree as follows:
1. Except as modified below, the terms of the Agreement shall remain in full force and effect.
2. In consideration of the mutual obligations set out herein, the Parties hereby agree that the terms and conditions set out below shall be added and incorporated as part of the Agreement. Except where the context requires otherwise, references in this DPA to the Agreement are to the Agreement as amended by, and including, this DPA.
3. The terms used in this DPA shall have the meanings set forth in Section 4. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. To the extent that a term is not defined in this DPA or the Agreement, the definition of the terms in the GDPR (as defined below) shall govern.
4.1. “Applicable Laws” means (a) European Union or Member State laws with respect to any Personal Data; and (b) any other applicable law with respect to any Personal Data;
4.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more that 50% of the voting interests of the subject entity.
4.3. “Contracted Processor” means fitDEGREE or a Subprocessor;
4.4. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
4.5. “EEA” means the European Economic Area;
4.6. “EU” means the European Union;
4.7. “EU Data Protection Laws” means the GDPR, any laws transposing the GDPR into domestic legislation of each Member State and any other EU laws related to data protection;
4.8. “GDPR” means the EU General Data Protection Regulation (Regulation (EU (2016/679));
4.9. “Personal Data” means any Personal Data as defined by the GDPR Processed by fitDEGREE on behalf of the Client pursuant to or in connection with the Agreement;
4.10. “Restricted Transfer” means:
4.10.1. a transfer of Personal Data from the Client to a Contracted Processor; or
4.10.2 an onward transfer of Personal Data from a Contracted Processor to a Contracted Sub-Processor, or between two establishments of a Contracted Processor;
4.11. “Services” means the services and other activities to be supplied to or carried out by fitDEGREE or any Subprocessor on behalf of the Client pursuant to the Agreement;
4.12. “Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated in that Annex and under section 15;
4.13. “Subprocessor” means any person (including any third party and any its affiliates, but excluding an employee of fitDEGREE or any of its sub-contractors) appointed by or on behalf of fitDEGREE or any of its affiliates to Process Personal Data on behalf of the Client in connection with the Agreement; and
5. Authority. fitDEGREE warrants and represents that, before any Subprocessor Processes any Client Personal Data on behalf of the Client, fitDEGREE's entry into this DPA as agent for and on behalf of that Subprocessor will have been duly and effectively authorized (or subsequently ratified) by that Subprocessor.
6.1. fitDEGREE and any affiliates shall:
6.1.1. comply with all applicable Data Protection Laws in the Processing of Personal Data; and
6.1.2. not Process Personal Data other than on the Client’s documented instructions unless Processing is required by Applicable Laws to which the relevant Processor is subject, in which case fitDEGREE or any of its affiliates shall to the extent permitted by Applicable Laws inform the relevant Client of that legal requirement before the relevant Processing of that Personal Data.
6.2 The Client shall instruct and authorize fitDEGREE and any of its affiliates to:
6.2.1. Process Personal Data; and
6.2.2. in particular, transfer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement; and
6.2.3. warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 6.2.
6.3 Annex 1 to this DPA sets out certain information regarding the Contracted Processors’ Processing of the Personal Data as required by Article 28(3) of the GDPR (and any equivalent requirements of other Data Protection Laws). fitDEGREE may make reasonable amendments to Annex 1 by written notice to the Client from time to time as fitDEGREE reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 6.3) confers any right or imposes any obligation on any party to this DPA.
7. fitDEGREE Personnel. fitDEGREE and any of its affiliates shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
8.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, fitDEGREE and any of its affiliates shall, in relation to the Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
8.2. The security measures implemented shall be described in Annex 3.
8.3. In assessing the appropriate level of security, fitDEGREE and any of its affiliates shall take into account the risks that are presented by Processing, in particular from a Personal Data Breach.
9.1. The Client authorizes fitDEGREE and any of its affiliates to appoint (and permit each Subprocessor appointed in accordance with this section 9 to appoint) Subprocessors in accordance with this section 9 and any restrictions in the Agreement.
9.2. fitDEGREE and any of its affiliates may continue to use those Subprocessors already engaged by fitDEGREE and any of its affiliates as of the date of this DPA, subject to fitDEGREE and any of its affiliates in each case as soon as practicable meeting the obligations set out in this section 9.
9.3. fitDEGREE shall give the Client prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within thirty (30) calendar days of receipt of that notice, the Client notifies fitDEGREE in writing of any objections (on reasonable grounds) to the proposed appointment, neither fitDEGREE and any of its affiliates shall appoint or disclose any Personal Data to that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Client and the Client has been provided with a reasonable written explanation of the steps taken.
9.3.1 If the Client objects to the use of any Subprocessor, fitDEGREE shall have the right to terminate the Agreement in accordance with the terms of the Agreement.
9.4. With respect to each Subprocessor, fitDEGREE and any of its affiliates shall:
9.4.1. before the Subprocessor first Processes Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by the Agreement;
9.4.2. ensure that the arrangement between, on the one hand, (a) fitDEGREE or any of its affiliates, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this DPA and meet the requirements of Article 28(3) of the GDPR;
9.4.3. if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses (Annex 2) are at all relevant times incorporated into the agreement between on the one hand fitDEGREE or the relevant intermediate Subprocessor; and on the other hand the Subprocessor; or, before the Subprocessor first Processes Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant party; and provide to the Client for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this DPA) as the Client may request from time to time.
9.5. fitDEGREE and any of its affiliates shall ensure that each Subprocessor performs the obligations under this DPA, as they apply to Processing of Personal Data carried out by that Subprocessor, as if it were party to this DPA in place of fitDEGREE.
10.1. Taking into account the nature of the Processing, fitDEGREE and any of its affiliates shall assist the Client by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Client’s obligations, as reasonably understood by the Client, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
10.2. fitDEGREE [and any of its affiliates] shall:
10.2.1. promptly notify the Client if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
10.2.2. ensure that the Contracted Processor does not respond to that request except on the documented instructions of the Client or as required by Applicable Laws to which the Contracted Processor is subject, in which case fitDEGREE shall to the extent permitted by Applicable Laws inform the Client of that legal requirement before the Contracted Processor responds to the request.
11.1. fitDEGREE shall notify the Client without undue delay upon fitDEGREE or any Subprocessor becoming aware of a Personal Data Breach affecting Personal Data, providing the Client with sufficient information to allow the Client to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
11.2. fitDEGREE shall cooperate with the Client and take such reasonable commercial steps as are directed by the Client to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
11.3. The Client shall notify fitDEGREE without undue delay, but no more than three (3) days after the Client becoming aware of a Personal Data Breach affecting Personal Data related to the Agreement, providing fitDEGREE with sufficient information to allow fitDEGREE to meet any obligations under the Data Protection Laws.
11.4. The Client shall cooperate with fitDEGREE and take such reasonable commercial steps as are directed by fitDEGREE to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
12. Data Protection Impact Assessment and Prior Consultation. fitDEGREE and any of its affiliates shall provide reasonable assistance to the Client with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which the Client reasonably considers to be required of the Client by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors. The Client shall pay for any and all costs associated with fitDEGREE’s assistance with the tasks outlined above.
13.1. Subject to any restrictions under any Applicable Laws, fitDEGREE and any of its affiliates shall promptly and in any event within ninety (90) business days after the date of cessation of any Services involving the Processing of Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of the relevant Personal Data. To the extent that any Personal Data is anonymized or de-identified, fitDEGREE shall maintain that anonymized and de-identified data.
13.2. Subject to any restrictions under any Applicable Laws, the Client may in its absolute discretion by written notice to fitDEGREE within sixty (60) business days of the Cessation Date require fitDEGREE and any of its affiliates to (a) return a complete copy of all Personal Data to the Client by secure file transfer in a reasonably operable format; and (b) delete and procure the deletion of all other copies of Personal Data Processed by any Contracted Processor. fitDEGREE and any of its affiliates shall comply with any such written request within ninety (90) business days of the Cessation Date.
13.3. Each Contracted Processor may retain Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that fitDEGREE and any of its affiliates shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for and in conformity with the purpose(s) specified in the Applicable Laws.
13.4. fitDEGREE shall provide written certification to the Client that fitDEGREE and any of its affiliates has fully complied with this section 13 within one-hundred twenty (120) business days of the Cessation Date.
14.1. fitDEGREE and any of its affiliates shall make available to the Client on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Client or an auditor mandated by the Client in relation to the Processing of the Personal Data by the Contracted Processors.
14.2. Information and audit rights of the Client only arise under section 14.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
14.3. The Client shall give fitDEGREE and any of its affiliates reasonable notice, but no less than thirty (30) calendar days before the start of any audit or inspection to be conducted under section 14.1 and shall make (and ensure that each of its mandated auditors makes) commercially reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Processors' equipment, personnel and business during the course of such an audit or inspection.
14.4. The Client shall bear the costs incurred by the Processor for any audits or inspections under this section 14.
15. Restricted Transfers. The Client (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses attached as Annex 2 with respect to any Restricted Transfer from Client to a Contracted Processor.
15.1. The Standard Contractual Clauses shall come into effect under section 15 on the later of:
15.1.1. the data exporter becoming a party to them;
15.1.2. the data importer becoming a party to them; and
15.1.3. commencement of the relevant Restricted Transfer.
16.1. Governing law and jurisdiction. The parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.
16.2. Order of precedence. Nothing in this DPA reduces the Client or fitDEGREE and any of its affiliates’ obligations under the Agreement in relation to the protection of Personal Data or permits the Client or fitDEGREE and any of its affiliates to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
16.2.1. Subject to section 16.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
16.3. Changes in Data Protection Laws.
16.3.1. The Client may:
16.3.1.1. propose any variations to this DPA which the Client reasonably considers to be necessary to address the requirements of any Data Protection Law by written notice to fitDEGREE.
16.3.2. fitDEGREE may:
16.3.2.1. propose any variations to this DPA which fitDEGREE reasonably considers to be necessary to address the requirements of any Data Protection Law by written notice to the Client..
16.3.3. If the Client or fitDEGREE gives notice under sections 16.3.1 and 16.3.2:
16.3.3.1. the Parties shall reasonably discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the Party's notice as soon as is reasonably practicable.
16.3.4. Neither the Client nor fitDEGREE shall require the consent or approval of any affiliate to amend this DPA pursuant to this section 16.3 or otherwise.
16.4. Severance
16.4.1. Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
16.5. Indemnification
16.5.1. The Client agrees to indemnify, keep indemnified and defend and hold harmless, solely at its own expense, fitDEGREE against all costs, claims, damages, expenses, penalties, or fines incurred by fitDEGREE or for which fitDEGREE may become liable due to any failure by the Client or the failure of any of its employees, subcontractors or agents to comply with any of its obligations under this DPA or applicable data protection laws.
16.5.2. fitDEGREE shall not be liable for any action taken at the instruction of the Client. To the extent that fitDEGREE takes any action related to data processing, and the Client is informed of such action, it will be deemed that the Client has consented, instructed, and has otherwise approved that action.
Details of Processing of the Client's Personal Data
This Annex 1 includes certain details of the Processing of the Client’s Personal Data as required by Article 28(3) GDPR.
I. Subject matter and duration of the Processing of the Client’s Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Master Service Agreement and the Data Protection Agreement.
II. The nature and purpose of the Processing of the Client’s Personal Data
fitDEGREE’s purpose of processing the Client’s Personal Data has two major roles in the software’s use. The first is to provide each User their own unique account in order to allow them to register for registerables and see history of attended registerables. The second is to provide the Controller (fitness center owner) with a digital copy of their customers’ data and have a record of their transaction history, whether that be financial transactions and/ or interactional transactions.
III. The types of the Client’s Personal Data to be Processed
The following data may be collected from the customer and end-users:
VI. The categories of Data Subject to whom the Client’s Personal Data relates
Prospective Customers
Current Customers
Individual End-Users
Employees of Prospective Customers
Employees of Customers
Clients (End-Users) of Customers
V. Data Transfers to Third-Countries
a. Data subjects. The personal data transferred concern the following categories of data subjects:
Prospective Customers
Current Customers
Individual End-Users
Employees of Prospective Customers
Employees of Customers
Clients (End-Users) of Customers
b. Categories of data. The personal data transferred concern the following categories of data:
The following data that may be collected from the customer and end-users is transferred to the United States:
c. Special categories of data. The personal data transferred concern the following special categories of data:
Gender (if collected)
Ethnicity (if collected
d. Processing operations. The personal data transferred will be subject to the following basic processing activities:
See Section II above.
VI. The obligations and rights of Client and Company Affiliates
The obligations and rights of the Client and Company Affiliates are set out in the Master Service Agreement and the Data Processing Agreement.
Standard Contractual Clauses
These Standard Contractual Clauses (“SCCs”) form part of the Data Protection Agreement (“DPA”) between fitDEGREE, LLC, and the Client (“Client” or “Data Exporter”). Collectively, fitDEGREE and the Client shall be referred to as “the Parties.”
These SCCs are entered into for the purposes of Article 46(3)(a) of the European Union’s General Data Protection Regulation (Regulation 2016/679) (“GDPR”) for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of data protection.
The Parties HAVE AGREED on the following SCCs in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the Data Exporter to the Data Importer of the Personal Data specified in Annex 1 to the DPA. The DPA entered into between the Parties contemplates that Services provided by the Data Importer will involve the transfer of Personal Data to the Data Importer. The Data Importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with the GDPR and applicable data protection law, the Client agrees to the provision of such Services, including the processing of Personal Data incidental thereto, subject to the Data Importer’s execution of, and compliance with, the terms of these Clauses.
01. Clause 1. Definitions. The terms used in these SCCs shall have the meanings set forth in the DPA and these SCCs. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Master Service Agreement (“MSA”) and the DPA. To the extent that a term is not defined in the MSA, DPA or these SCCs, the definition of the terms in the General Data Protection Regulation shall be in force.
a. For the purposes of the SCCs:
i. 'Personal Data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in the GDPR;
ii. 'the Data Exporter' means the controller who transfers the Personal Data;
iii. 'the Data Importer' means the processor who agrees to receive from the Data Exporter Personal Data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the SCCs and who is not subject to a third country's system ensuring adequate protection within the meaning of the GDPR;
iv. 'the sub-processor' means any processor engaged by the Data Importer or by any other sub-processor of the Data Importer who agrees to receive from the Data Importer or from any other sub-processor of the Data Importer Personal Data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with his instructions, the terms of the SCCs and the terms of the written subcontract;
v. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of Personal Data applicable to a data controller in the Member State in which the Data Exporter is established;
vi. 'technical and organizational security measures' means those measures aimed at protecting Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
02. Clause 2. Details of the transfer.
a. The details of the transfer and in particular the special categories of Personal Data where applicable are specified in Annex 1 to the DPA which forms an integral part of these SCCs.
03. Clause 3. Third-Party Beneficiary.
a. The data subject can enforce against the Data Exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, and Clauses 9 to 12 as third-party beneficiary.
b. The data subject can enforce against the Data Importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, and Clauses 9 to 12, in cases where the Data Exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity.
c. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, and Clauses 9 to 12, in cases where both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
d. The Parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
04. Clause 4. Obligations of the Data Exporter. The Data Exporter agrees and warrants:
a. that the processing, including the transfer itself, of the Personal Data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the Data Exporter is established) and does not violate the relevant provisions of that Member State;
b. that it has instructed and throughout the duration of the Personal Data processing Services will instruct the Data Importer to process the Personal Data transferred only on the Data Exporter's behalf and in accordance with the applicable data protection law and the SCCs;
c. that the Data Importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Annex 3 to the DPA;
d. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
e. that it will ensure compliance with the security measures;
f. that the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of the GDPR;
g. to forward any notification received from the Data Importer or any sub-processor pursuant to Clause 5(b) and Clause 8(c) to the data protection supervisory authority if the Data Exporter decides to continue the transfer or to lift the suspension;
h. to make available to the data subjects upon request a copy of the SCCs, with redactions as necessary for information related to compliance with security measures, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the SCCs, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
i. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
j. that it will ensure compliance with Clause 4.
05. Clause 5. Obligations of the Data Importer. The Data Importer agrees and warrants:
a. to process the personal data only on behalf of the Data Exporter and in compliance with its instructions and the SCCs; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the Data Exporter of its inability to comply, in which case the Data Exporter is entitled to suspend the transfer of data and/or terminate the MSA and DPA;
b. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the Data Exporter and its obligations under the MSA and DPA and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the SCCs, it will promptly notify the change to the Data Exporter as soon as it is aware, in which case the Data Exporter is entitled to suspend the transfer of data and/or terminate the MSA and DPA;
c. that it has implemented the technical and organizational security measures specified in Annex 3 to the DPA before processing the Personal Data transferred;
d. that it will promptly notify the Data Exporter about:
i. any legally binding request for disclosure of the Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
ii. any accidental or unauthorized access, and
iii. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
e. to deal promptly and properly with all inquiries from the Data Exporter relating to its processing of the Personal Data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
f. at the request of the Data Exporter to submit its data processing facilities for audit of the processing activities covered by the SCCs which shall be carried out by the Data Exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the Data Exporter, where applicable, in agreement with the supervisory authority, subject to the restrictions in the DPA;
g. to make available to the data subject upon request a copy of the SCCs, or any existing contract for sub-processing, unless the SCCs or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex 3 of the DPA which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the Data Exporter;
h. that, in the event of sub-processing, it has previously informed the Data Exporter and obtained its prior written consent;
i. that the processing services by the sub-processor will be carried out in accordance with Clause 11; and
j. to send promptly a copy of any sub-processor agreement it concludes under the SCCs to the Data Exporter.
06. Clause 6. Liability.
a. The Parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the Data Exporter for the damage suffered.
b. If a data subject is not able to bring a claim for compensation in accordance with paragraph (a) against the Data Exporter, arising out of a breach by the Data Importer or its sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the Data Exporter has factually disappeared or ceased to exist in law or has become insolvent, the Data Importer agrees that the data subject may issue a claim against the Data Importer as if it were the Data Exporter, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
c. The Data Importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
d. If a data subject is not able to bring a claim against the Data Exporter or the Data Importer referred to in paragraphs (a) and (b), arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the SCCs as if it were the Data Exporter or the Data Importer, unless any successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
07. Clause 7. Mediation and Jurisdiction.
a. The Data Importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the SCCs, the Data Importer will accept the decision of the data subject:
i. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
ii. to refer the dispute to the courts in the Member State in which the Data Exporter is established.
b. The Parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
08: Clause 8. Cooperation with Supervisory Authorities.
a. The Data Exporter agrees to deposit a copy of these SCCs with the Supervisory Authority if it so requests or if such deposit is required under the applicable data protection law.
b. The Parties agree that the Supervisory Authority has the right to conduct an audit of the Data Importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the Data Exporter under the applicable data protection law.
c. The Data Importer shall promptly inform the Data Exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the Data Importer, or any sub-processor, pursuant to paragraph b. In such a case the Data Exporter shall be entitled to take the measures foreseen in Clause 5 (b).
09. Clause 9. Governing Law.
a. The SCCs shall be governed by the law of the Member State in which the Data Exporter is established.
010. Clause 10. Variation of these SCCs.
a. The Parties undertake not to vary or modify the SCCs. This does not preclude the Parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
011. Clause 11. Sub-processing.
a. The Data Importer shall not subcontract any of its processing operations performed on behalf of the Data Exporter under the SCCs without the prior written consent of the Data Exporter. Where the Data Importer subcontracts its obligations under the SCCs, with the consent of the Data Exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the Data Importer under the SCCs. Where the sub-processor fails to fulfil its data protection obligations under such written agreement, the Data Importer shall remain fully liable to the Data Exporter for the performance of the sub-processor's obligations under such agreement.
b. The prior written contract between the Data Importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph a of Clause 6 against the Data Exporter or the Data Importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the SCCs.
c. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph a shall be governed by the law of the Member State in which the Data Exporter is established.
d. The Data Exporter shall keep a list of sub-processing agreements concluded under the SCCs and notified by the Data Importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the Data Exporter's data protection Supervisory Authority.
012. Clause 12. Obligation after the termination of Personal Data processing Services.
a. The Parties agree that on the termination of the provision of data processing Services, the Data Importer and the sub-processor shall, at the choice of the Data Exporter, return all the Personal Data transferred and the copies thereof to the Data Exporter or shall destroy all the Personal Data and certify to the Data Exporter that it has done so, unless legislation imposed upon the Data Importer prevents it from returning or destroying all or part of the Personal Data transferred. In that case, the Data Importer warrants that it will guarantee the confidentiality of the Personal Data transferred and will not actively process the Personal Data transferred anymore.
b. The Data Importer and the sub-processor warrant that upon request of the Data Exporter and/or of the Supervisory Authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph a.
Technical and Organizational Security Measures
Description of the technical and organizational security measures implemented by the Data Importer in accordance with the Data Processing Agreement and Annex 2, the Standard Contractual Clauses:
When an individual uses fitDEGREE, they are accessing it through an app downloaded via the iOS App Store/ the Google Play Store or through a website. fitDEGREE does not share/ provide data with third party companies unless it provides value in using the fitDEGREE platform.
For Data When data is retrieved or sent through our system, it is sent through HTTPS protocol, making sure that all data in and out is encrypted. The data is transfer to our API on a server hosted by AWS (Amazon Web Servers).
Once the data is retrieved by our API, fitDEGREEhas a token based firewall to ensures that the user accessing the information has adequate permissions. If a user sends an invalid request to the server, requesting another user’s data, that invalid request would be stopped at the firewall and returned a ‘Permission Denied’ error.
From there, the data is securely stored and retrieved from a database also hosted on AWS, through their RDS (Relational data-basing services). Access to the AWS database storing fitDEGREE data is limited to only to company programers requiring such access and requires a unique username and password, that is securely stored.
The only exception to this is images, which are stored in AWS S3 storage.
For additional information regarding AWS compliance wtih the GDPR, please visit: https://aws.amazon.com/compliance/gdpr-center/
For Payment Information fitDEGREE does not manage any PCI Compliant payment information internally, and is fully PCI Level 1 compliant. We use a third party vendor, “SplashPayments”. When a credit card number and expiration date is entered into fitDEGREE website or app, it is entered through an iFrame, which embeds the SplashPayments website directly into the fitDEGREE interface. SplashPayments transfer payment information through the iFrame over HTTPS to SplashPayments servers. fitDEGREE is provided with a token representing that information in exchange, which fitDEGREE refers to for future purchases. At no time does fitDEGREE store, maintain, or access any payment information.
For additional information regarding PCI Level 1 compliance, please visit: https://www.vantiv.com/secure-payment-systems/understand-pci-compliance-levels
For Text Messaging Sometimes, fitDEGREE may text our end-users to verify the phone number provided by the end-user. fitDEGREE uses a third-party service, Twilio, to send these text messages. Twilio is provided only with the phone number provided and the text message content. For additional regarding Twilio’s GDPR Compliance, please visit: https://www.twilio.com/gdpr.
For Customer Relationship Management In order to manage prospects and customers efficiently, fitDEGREE uses a third-party provider for CRM software called Infusionsoft. Infusionsoft manages contact information, creates automated email campaigns, and maintains billing information.
For additional information regarding Infusionsoft’s GDPR Compliance, please visit: https://www.infusionsoft.com/legal/data-protection-faq
