ASSUMPTION OF RISK - RELEASE AND WAIVER OF LIABILITY
The following TERMS AND CONDITIONS (the “Agreement”) shall govern the services and products (“Work Product”) provided by The Fit Reformer LLC (“Fit Reformer”, “Us”, or “We”). This Agreement represents the whole agreement and understanding between Fit Reformer and the individual or entity who subscribes to our service (“You” or “Subscriber”). Fit Reformer and You may be referred to as “Party” or “Parties”.
By purchasing Fit Reformer’s Work Product, You agree to comply with all of the terms and conditions in this Agreement. Fit Reformer’s Work Product may consist of educational videos, instructional guides, advice on maintenance schedules, and other supportive services concerning various Pilates equipment. The Work Product cannot, and is not intended to, replace the manufacturer or professional repair service relationship that You have concerning Your Pilates equipment. The Work Product is for general educational purposes only.
ASSUMPTION OF RISK: You accept and assume any and all risks of injury or death of any person(s) or damage to property arising from Your use of the Work Product provided by Fit Reformer, whether caused by the negligence of any of the released parties or otherwise. You further agree to hold harmless Fit Reformer, its officers, directors, employees, shareholders, agents, successors, and assigns, for any liability for illness, injury or death of any person(s) and damage to property caused by Your negligent or intentional act or omissions.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY: You agree that Fit Reformer has trade secrets and confidential information that are valuable by nature and not known to Fit Reformer’s competitors or the general public. You agree that such confidential information has a value and is entitled to perpetual protection from competitors and others. You agrees to hold in the strictest confidence and not to divulge to others, not to use to the detriment of Fit Reformer, and not to use in any business competitive with or similar to any business of Fit Reformer, any of Fit Reformer’s trade secrets or confidential information without first obtaining the written permission of Fit Reformer. You shall not, without Fit Reformer’s prior written consent, copy, duplicate, record or otherwise reproduce the Services or Work Product, in whole or in part, or otherwise make it available to any person not required to have access to its contents. In the event of a breach or threatened breach by You of the provisions of this paragraph, Fit Reformer shall be entitled to obtain a temporary restraining order and a preliminary injunction, without the obligation of posting a bond, restraining You from violating the terms of this paragraph or from rendering services to any person or entity to whom Fit Reformer’s trade secrets or confidential information has been disclosed or are threatened to be disclosed and for whom You are working or rendering services or threatens to work or render services. Nothing set forth in this Agreement shall be construed as prohibiting Fit Reformer from pursuing any other remedy available to it for such breach or threatened breach of this paragraph, including, without limitation, recovery of damages from You.
As used herein, the term “Confidential Information” shall mean any and all information, regardless of whether kept in a document, in an electronic storage medium, or in Your memory, and includes but is not limited to all data, compilations, programs, devices, strategies, concepts, ideas, and methods concerning or related to the Services and Work Product.
As used herein, “Trade Secrets” includes certain Confidential Information and means, as provided in the Uniform Trade Secrets Act (Civil Code §3426.1(d)), without limitation, information, including a formula, pattern, compilation, program, device, method, technique, or process that (a) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
You acknowledge and agree that Fit Reformer is engaged in the highly competitive business of instructional videos and guides for Pilates equipment and has expended, or will expend, significant sums of money and has invested, or will invest, a substantial amount of time to develop and use, and maintain the secrecy of, the Confidential Information and Trade Secrets. Fit Reformer has thus obtained, or will obtain, a valuable economic asset that has enabled, or will enable, it to develop an extensive reputation and to establish long-term business relationships with its suppliers, customers, and vendors. If such Confidential Information or Trade Secrets were disclosed to another person or entity or used for the benefit of anyone other than Fit Reformer, Fit Reformer would suffer irreparable harm, loss, and damage. Accordingly, You acknowledges and agrees that:
- The Confidential Information and Trade Secrets are, and at all times hereafter shall remain, the sole
property of Fit Reformer. 2. You shall use Your best efforts and utmost diligence to guard and protect Confidential Information and Trade Secrets from any unauthorized disclosure to any competitor, supplier, vendor, or customer of Fit Reformer or any other person, firm, corporation, or other entity. 3. Unless Fit Reformer gives You prior express written permission, You shall not use for Your own benefit or use for or disclose to any competitor, supplier, or customer, or any other person, firm, corporation, or other entity, the Confidential Information or Trade Secrets as set forth herein.
Indemnity by Fit Reformer. Fit Reformer shall defend, indemnify and hold harmless You and Your officers, directors, employees, shareholders, agents, successors, and assigns from and against any and all direct loss, damage, settlement, costs, or expense (including reasonable attorney’s fees), as incurred, resulting from, or arising out of (i) any claim against You which alleges that any Fit Reformer Intellectual Property or Work Product infringes upon, misappropriates or violates any patents, copyrights, trademarks, or trade secret rights, or other proprietary rights of persons, firms, or entities who are not parties to this Agreement; (ii) any gross negligence, willful misconduct, or misrepresentation by Fit Reformer, its officers, directors, employees, shareholders, affiliates, or successors and assigns; or (iii) any material breach of this Agreement by Fit Reformer, its representatives or affiliates, or successors or assigns.
Indemnity by You. You shall defend, indemnify, and hold harmless Fit Reformer and its officers, directors, employees, shareholders, agents, successors, and assigns from and against any and all direct loss, damage, settlement, costs, or expense (including reasonable attorney’s fees), as incurred, resulting from, or arising out of (i) any claim against Fit Reformer which alleges that Your use of the Fit Reformer’s Intellectual Property (other than in compliance with the Fit Reformer’s standard operating procedures and direction) infringes upon, misappropriates, or violates any patents, copyrights, trademarks or trade secret rights, or other proprietary rights of persons, firms, or entities who are not parties to this Agreement; (ii) any negligence, willful misconduct, or misrepresentation by You, Your officers, directors, employees, members, managers, shareholders or successors and assigns; (iii) any action by You that challenges, undermines, weakens, or questions the validity of, or Fit Reformer’s ownership or license of, the Trademarks or Intellectual Property; (iv) any third party claim for the illness, injury or death of any person(s) or damage to property that may have resulted from the Work Product delivered by Fit Reformer; or (v) any material breach of this Agreement by You, or its Representatives, or successors or assigns.
Procedures for Third Party Claims. In the case of any claim for indemnification arising from a claim of a third party (a “Third Party Claim”), a party seeking indemnification hereunder (each an “Indemnified Party”) shall give prompt written notice, following such Indemnified Party’s receipt of such claim or demand, to the party from which indemnity is sought (each an “Indemnifying Party”) of any claim or demand of which such Indemnified Party has knowledge and as to which it may request indemnification hereunder; provided, however, that failure to give such notice will not affect such Indemnified Party’s rights hereunder unless, and then solely to the extent that, the rights of the Indemnifying Parties from whom indemnity is sought are prejudiced as a result of such failure. The Indemnifying Party shall have the right (and if it elects to exercise such right, shall do so within twenty (20) days after receiving such notice from the Indemnified Party) to defend and to direct the defense against any such claim or demand, in its name or in the name of the Indemnified Party, as the case may be, at the expense of the Indemnifying Party, and with counsel selected by the Indemnifying Party; provided, that the Indemnifying Party shall be entitled to assume control of the defense of such action only to the extent the Indemnifying Party acknowledges in writing its indemnity obligations and assumes and holds the Indemnified Party harmless from and against the full amount of any damages, awards, costs, or expenses, including reasonable attorney’s fees (collectively, “Damages”) resulting from such Third Party Claim; and provided further that the Indemnifying Party shall not be entitled to assume control of such defense if (i) the Indemnifying Party shall not have notified the Indemnified Party of its exercise of its right to defend such third party claim within such twenty (20) day period; (ii) such claim or demand seeks an injunction or other equitable relief against the Indemnified Party, (iii) the Indemnified Party shall have reasonably concluded that (x) there is a conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of the defense of such claim or demand or (y) the Indemnified Party has one or more defenses not available to the Indemnifying Party, (iv) such claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (v) the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party fully informed, in the defense of such claim or demand. The Indemnified Party shall have the right to participate in the defense of any claim or demand with counsel employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) of the second preceding sentence or as to which the Indemnifying Party shall not in fact have employed counsel to assume the defense of such claim or demand, the reasonable fees and disbursements of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party shall have no indemnification obligations with respect to any such claim or demand which shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not settle any such claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned unless such settlement is accompanied by a document releasing the Indemnified Party from all liability with respect to the matter in controversy that is binding, valid and enforceable against all applicable Parties). Notwithstanding the foregoing, if the Indemnified Party fails to object to the settlement within five (5) Business Days of receipt of a written notice from the Indemnifying Party containing the terms and condition of such settlement, the Indemnified Party shall be deemed to have consented to the settlement.
AFFIRMATIVE DEFENSE; ACKNOWLEDGEMENT OF UNDERSTANDING: This Agreement may also be plead as an affirmative defense to any claim that You might make as a result of any illness, injury or death of any person(s) or damage to property, which You may sustain as a result of Your use of the Work Product.
NO WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIT REFORMER MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
LIMITATIONS OF LIABILITY. FIT REFORMER’S TOTAL LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF THIS AGREEMENT OR WORK PRODUCT PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY FIT REFORMER’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE PRICE PAID TO FIT REFORMER FOR THE SERVICES RENDERED HEREUNDER. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF FIT REFORMER’S INTELLECTUAL PROPERTY RIGHTS, NEITHER YOU NOR FIT REFORMER SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
GOVERNING LAW. This Agreement will be interpreted and enforced in accordance with the laws of the State of California, regardless of any principles of conflicts of laws or choice of laws of any jurisdiction.
ARBITRATION AND JURISDICTION. Any disputes arising under, or in connection with, this Agreement shall be submitted to binding arbitration upon the written request of one party after the service of that request on the other party. The parties shall appoint one arbitrator to hear and determine the dispute. If the parties cannot agree, then the Superior Court of Sacramento County shall choose an impartial arbitrator whose decision shall be final and conclusive on all parties. The cost of the arbitration shall be borne by the losing party or in such proportion as the arbitrator shall decide. The prevailing party in any action or proceeding to enforce any provision of this Agreement will be awarded attorneys' fees and costs incurred in that action or proceeding. The sole and exclusive venue for the arbitration and or any legal dispute shall be Sacramento County, California.
AMENDMENTS: This Agreement may be modified or amended at the sole discretion of Fit Reformer at any time, with or without notice.
NOTICES. All notices required pursuant to the terms of this Agreement or applicable law must be in writing and will be deemed given when delivered by electronic mail, by hand, two (2) calendar days after being deposited with an overnight courier, or five (5) calendar days after mailing, postage prepaid, by registered or certified mail, return receipt requested, to the below address:
4044 New York Avenue, APT 1508
Fair Oaks, California 95628
DISCLAIMER. Fit Reformer is not affiliated with any manufacturer of Pilate’s equipment; however, from time to time, Fit Reformer may be employed by various manufacturers.
SEVERABILITY. f for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
HEADINGS. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.