By completing the registration process, clicking the "agree" button or accessing, downloading or using any element of the GymFly platform, you (a) acknowledge that you have read and understand this agreement; (b) represent that you (i) are of legal age to form a binding contract if you are a client (as defined below) or (ii) have all requisite power and authority to enter into this agreement if you are a fitness center (as defined below), and that this agreement constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and (c) accept this agreement and agree that you are legally bound by its terms. If you do not agree to these terms, do not access, download or use the GymFly platform. The licenses and rights granted under this agreement are expressly conditioned upon acceptance by such authorized personnel.
Welcome to the GymFly online and mobile platform (the "Platform"), owned and operated by GymFly Fitness, Inc., a Delaware corporation ("GymFly"). The Platform allows persons seeking to use fitness centers ("Client(s)") to find and connect with fitness centers ("Fitness Center(s)") and then, ultimately, access the facilities of those Fitness Centers (the "Services"). The following terms and conditions ("Terms") govern your use of the Platform.
Nothing in these Terms shall be construed as making GymFly a partner, joint venturer, agent, legal representative, employer, contractor, or employee of any other party. GymFly does not take part in, nor is GymFly in any way responsible for, any interactions or negotiations between Clients and Fitness Centers, except to the extent necessary to maintain the Platform. Any interaction between you and any other individual or entity through the Platform or arising out of your use of the Platform, including any interactions between Clients and Fitness Centers, is solely between you and that other individual or entity. GymFly expressly disclaims any responsibility for any interactions between Clients and Fitness Centers.
By accessing, viewing, or using the content, material, or services available on or through the Platform, you indicate that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, you are not granted permission to use the Platform and must exit immediately.
GymFly can be contacted at [email protected] .
1. License to use the App.
Subject to these Terms, GymFly hereby grants you a single, limited, terminable, revocable, royalty-free, non-exclusive, nontransferable, nonsublicenseable license to access and use the Platform solely for informational purposes. You shall be responsible, at your sole expense, for procuring, operating, and maintaining the mobile device, hardware, systems software, telecommunications applications and providers, and other items necessary or appropriate to enable you to exercise your rights and licenses hereunder. Without limiting any other provisions of these Terms, any software, applications or other materials, including the Platform, made available to you is the copyrighted work of GymFly or its affiliates, or its or their licensors. Copying or distributing the Platform or the Platform Materials (as defined below) associated with the Platform is expressly prohibited.
In order to access certain content, services, products, or benefits on the Platform, you may be asked to register and create an account. If you are a Client, by registering an account on the Products, you represent that you are at least 18 years of age or older. You are fully responsible for your account, including use of the account by any third party, and maintaining the confidentiality of your password.
As part of the registration process, you may be asked to select a user name and password, and may be required to provide GymFly with certain information about yourself including some types of identifying information, such as your email and your address. You agree that the information that you provide to us on registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up to date at all times. By registering with the Platform, you hereby authorize GymFly to verify any representations and warranties you make either pursuant to these Terms or within any materials submitted during the registration process, including conducting background checks, contacting any provided references or affiliations, and reviewing public records. You acknowledge that while GymFly reserves the right to verify these representations and warranties, GymFly is not obligated to do so, and may choose not to do so, in GymFly’s sole discretion.
Depending on your intended uses of the platform, you may be asked to designate your account as either a Client account (i.e., for the Clients) or a Fitness Center account (i.e., for the Fitness Centers). Your obligations and rights under these terms may vary depending on whether you registered as a Client or a Fitness Center.
The Services are made available on the Platform for purchase. All payments for the Services made available through the Platform must be made through the payment methods provided on the Platform, and in no event shall any payments be made directly or indirectly to any Fitness Center or other provider of any services other than through the Platform.
By purchasing the Services made available through the Platform, you represent that you are 18 years of age or older and that you will comply with all specified processes and procedures for redeeming your purchase. GymFly uses a third party payment processor to process credit card transactions made through the Platform. If you purchase the Services from GymFly or make any payments via the Platform with your credit card, the credit card information that you submit to GymFly will be protected by encryption, such as with the Secure Socket Layer ("SSL") protocol. Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission.
You are responsible for all charges incurred under your account, whether made by you or another person using your account. If for any reason GymFly does not receive payment for a purchase, GymFly may exercise its rights in law and equity, including (a) immediately suspending or terminating your account; (b) seeking collection of the outstanding amount owed; and/or (c) seeking legal action against you for the breach of these Terms. You are also responsible for paying any governmental taxes imposed in connection with use of the Platform or the purchase of the Services made available through the Platform, including sales, use, and excise taxes (excluding only taxes on GymFly’s net income). To the extent that GymFly is obligated to collect such taxes, the applicable tax will be added to your billing account. All sales are final, and any refunds will be in GymFly’s sole discretion.
In accordance with GymFly’s Remittance Policy , which is incorporated into these Terms by reference, as if set forth fully herein, GymFly will remit to the Fitness Centers, on a monthly basis, payments made by Clients to GymFly for the applicable Fitness Center’s Services in the prior month, less any Facilitation Fees (as described in the Remittance Policy) owed to GymFly. Any amounts due to a Fitness Center will be based on the fees associated with the Services provided by that Fitness Center and calculated in accordance with the Remittance Policy incorporated above. The Fitness Centers agree not to collect any payments for any the Services provided to Clients outside the payment methods described herein. If applicable, each of the Fitness Centers will also report amounts received from GymFly by filing Form 1099-MISC with the Internal Revenue Service, as required by law.
[As a Client, you may be asked to agree to additional terms and conditions with each purchase, including any disclaimers or waivers that apply to your use of a particular Fitness Center. These terms and conditions are solely between you (a Client) and the applicable Fitness Center.]
4. Unauthorized Activities.
You agree that you will not use the Platform for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including to import, export, copyright, and trademark laws); (b) contacting any other user of the Platform who has requested not to be contacted; (c) stalking or harassing anyone; (d) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Platform Materials, unless otherwise authorized by these Terms or in a separate written agreement with GymFly; (e) attempting to gain unauthorized access to GymFly’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Platform or any services provided through the Platform; (f) data mining, scraping, robots, or for releasing spiders, crawlers or any other data gathering or extraction tools, except to the extent the Platform is indexed by general purpose consumer accessible search engines, including Google, Yahoo, MSN, or Bing; (g) promoting any effort to compete with GymFly, including using the Platform to provide, alone or in combination with any other product or service, any service to any third party or any use that causes a reduction or loss of business for GymFly as related to an existing or potential customer; (h) cheating or plagiarizing; (i) any resale or commercial use of the Platform, the Platform Materials, or the User Content (as defined below); (j) using the Platform to access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including any commercial purposes; or (k) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Platform aimed at preventing or restricting the unauthorized use of the Platform or any of the Platform Materials. You agree to use the Platform only for the purpose and manner for which they were specifically designed; any other use of the Platform or Platform Materials without prior written permission of GymFly is strictly prohibited. You acknowledge and agree that the unauthorized use of the Platform or the Platform Materials could cause irreparable harm to GymFly and that in the event of such unauthorized use, GymFly shall be entitled to an injunction in addition to any other remedies available at law or in equity.
5. Rules for Fitness Centers.
Each of the Fitness Centers must be: (a) able to provide the Services without creating a conflict with, or breach of, any contract, relationship or understanding to which it is a party; and (b) comply with all federal, state, and local statutes, regulations, rules, ordinances, and orders of any governmental body or agency, including those relating to providing the Services to the Clients.
Each of the Fitness Centers must maintain a current and accurate profile that promotes a fair playing field and provides a safe, simple, and positive experience for all users of the Platform, including the Clients. The profile of each of the Fitness Centers must not include any inappropriate language, any misleading titles that do not accurately describe the Services you offer as a Fitness Center, or any links to third party websites or services. The Fitness Centers may not solicit any of the Clients to pay additional fees, including travel fees, or use other payment methods not specifically permitted by GymFly as approved payment methods.
6. Intellectual Property.
As between you and GymFly, GymFly owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components and any software concepts and documentation and other material on, in or made available through the Platform ("Platform Materials"), as well as the selection, coordination, arrangement, and organization and enhancement of the Platform Materials. All Platform Materials are protected pursuant to copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Platform Materials. As between you and GymFly, all names, trademarks, service marks, certification marks, symbols, slogans, or logos appearing on the Products are proprietary to GymFly or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Unless expressly written otherwise by GymFly, you do not have any rights of any kind in or to the Platform Materials, other than the right to use the Platform Materials in accordance with these Terms.
Certain features of the Platform may allow the Clients to contribute comments, feedback, information, content, text, files, graphics, postings, and other materials and information for access, use, viewing and commentary by other users to the Platform (collectively, "User Content"). By contributing User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the Platform and all other persons and entities will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) impersonate any person or entity or falsely state or otherwise imply an affiliate with a person or entity or is generally false, deceptive, misleading, deceitful, misinformative or constitutes a "bait and switch"; (e) be obscene, child pornographic, or indecent; (f) violate any community or Internet standard; (g) constitute misappropriation of any trade secret or know-how; or (h) constitute disclosure of any confidential information owned by any third party.
You retain all right, title and interest in and to the User Content that you submit and all intellectual property rights embodied therein. Upon your submission of User Content or other material or information to GymFly, you grant GymFly a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the User Content, all without any compensation to you whatsoever. If you believe that any content or postings on the Platform violate your intellectual property or other rights, please follow our Complaint Procedure in Section 13 of these Terms.
7. Third Party Websites and Content.
GymFly is a private company and is not affiliated with any of the Clients or Fitness Centers. The Platform may contain links to other websites or feature services of third parties for the convenience of users: (a) in locating information, products, or services that may be of interest; or (b) accessing the Fitness Centers, and complying with any requirements associated with such transactions. Use of such third party links or third party services on or made available through the Platform is entirely at your own risk. GymFly does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of any third party websites or services is at your own risk, and subject to the terms and conditions of such third parties. GymFly does not endorse any product, service, or treatment provided on a third party website or advertised or provided on the Platform.
You hereby acknowledge that the confidential business materials and other non-public information, including, but not limited to, financial information, business relationships, and other trade secrets ("Confidential Information") of GymFly may be disclosed to you during your use of the Platform or during your use of or granting of the Services. You will not, at any time, during or after the term of this Agreement, directly or indirectly, copy, use, disclose, release or publish any such Confidential Information, except as expressly required or authorized by GymFly. You will exercise reasonable precautions in maintaining the confidentiality of GymFly’s Confidential Information, and will not disclose such Confidential Information to third parties without GymFly’s express written permission. Because the life of Confidential Information may extend indefinitely, this provision shall continue perpetually.
GymFly, its subsidiaries, affiliates, and licensors, are not responsible for and do not guarantee the accuracy or completeness of any Platform Materials, User Content, the Services, products, data, services (whether performed by GymFly or any third party), links, advertisements, or other items contained within or made available through the Platform. For avoidance of doubt, GymFly disclaims any and all responsibility for the services or products provided by any Fitness Center, and GymFly disclaims any and all responsibility for the failure of any Fitness Center to perform any services or provide any goods. GymFly reserves the right to immediately remove any Platform Materials or User Content for any reason, or for no reason. GymFly cannot and does not review all communications or products made available on or through the Platform, but, although not obligated to, may review, verify, make changes to or remove any User Content, Platform Materials, the Platform, or the Services made available in connection with the Platform, including information submitted in connection with the Platform Materials or other features at any time, with or without notice in its sole discretion. You agree that you must evaluate and bear all risks associated with the use of the Platform, Platform Materials, User Content, or the Services and that you may not rely on such Platform, Platform Materials, User Content, or the Services.
THE PLATFORM, THE PLATFORM MATERIALS, USER CONTENT, THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM MADE AVAILABLE "AS IS" AND "WITH ALL FAULTS." USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK. GYMFLY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE PLATFORM, THE USER CONTENT, THE PLATFORM MATERIALS, THE SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL USER CONTENT, THE PLATFORM, THE PLATFORM MATERIALS, THE SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM, IS WITH YOU.
10. LIMITATION OF LIABILITY.
GYMFLY AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DO RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE PLATFORM, THE USER CONTENT, THE PLATFORM MATERIALS, THE SERVICES, PRODUCTS, DATA, AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PRODUCTS, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR GYMFLY HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF GYMFLY AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE PRODUCTS, USER CONTENT, THE PLATFORM MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM, OR THE SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE PRODUCTS AND THE SERVICES AND PRODUCTS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF GYMFLY AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS. IF YOU ARE DISSATISFIED WITH THE PLATFORM OR WITH ANY OF THESE TERMS, OR FEEL GYMFLY HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM.
You shall indemnify GymFly and its directors, officers, employees, agents, contractors and licensors (the "GymFly Indemnitees") against all claims, actions, suits, and other proceedings ("Claims") arising out of or incurred in connection with the Platform and your use of the Platform, the Platform Materials or any of the Services, product or data obtained through the Platform, your fraud, violation of law, negligence, willful misconduct, or any other use of the Platform, the User Content, the Platform Materials, the Services, products, information and other materials on, in and made available through the Platform, (except to the extent attributable to GymFly), or any breach by you of these Terms and shall indemnify and hold the GymFly Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of GymFly. GymFly or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If GymFly or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to GymFly, subject to the right of GymFly to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
12. Internet Security.
GymFly uses reasonable efforts to ensure that the platform is generally available. However, there will be occasions when access to the Platform will be interrupted or unavailable. GymFly will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that GymFly shall not be liable to you for any modification, suspension, or discontinuance of the Platform. You understand that the technical processing and transmission of any content may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent from our Platform will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to GymFly via the Platform or the Internet, including, for example, personal information such as your name or address.
13. Complaint Procedures.
If you believe that any content or postings on the Platform violates your intellectual property or other rights, please notify GymFly via email to [email protected] with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: "The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message."
14. Changes to these Terms; Termination.
GymFly reserves the right at any time to modify, alter or update these Terms. GymFly will notify you on the Platform or by email of any new or revised Terms, including information regarding the location of the new or revised terms and conditions. Your use of the Platform following any changes means that you agree to follow and be bound by the terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the Platform before the change was made. It is the obligation of users visiting the Platform before the change to learn of changes to the Terms since their last visit. GymFly may suspend or terminate your account and/or your ability to use the Platform, or any of the Services on the Platform for failure to comply with these Terms, for providing GymFly with untrue or inaccurate information about yourself, for infringement upon GymFly’s proprietary rights, or for any other reason whatsoever or for no reason.
You may not transfer or assign any of your rights or obligations hereunder to any other party in any manner (by assignment, operation of law or otherwise) unless you have obtained written consent from GymFly. If you attempt to transfer or assign any of your rights or obligations hereunder without GymFly’s consent, the transfer or assignment will be ineffective, null, and void (and you will be in material breach of these Terms).
16. Dispute Resolution.
You and GymFly each agree that any and all disputes or claims that have arisen or may arise between you and GymFly relating in any way to or arising out of these Terms, your use of or access to the Platform, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow the terms of these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement to arbitrate, any part of it, or of these Terms, including, but not limited to, any claim that all or any part of this agreement to arbitrate or these Terms is void or voidable. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1.800.778.7879. Arbitration shall be venued in the State of Oklahoma, unless GymFly, in its sole discretion, elects otherwise. If the value of the relief sought is $10,000 or less, you or GymFly may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and GymFly subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or GymFly may attend by telephone, unless the arbitrator requires otherwise.
YOU AND GYMFLY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND GYMFLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS OF THE PLATFORM.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). A Notice to GymFly should be sent via email to [email protected] . GymFly will send any Notice to you to the email address we have on file associated with your GymFly account; it is your responsibility to keep your email address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought. If you and GymFly are unable to resolve the claims described in the Notice within thirty days after the Notice is sent, you or GymFly may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. In the event GymFly initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your GymFly account. Any settlement offer made by you or GymFly shall not be disclosed to the arbitrator.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Platform, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in these Terms. If the value of the relief sought is $10,000 or less, at your request, GymFly will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by GymFly should be submitted by mail to the AAA along with your Demand for Arbitration and GymFly will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, GymFly will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse GymFly for all fees associated with the arbitration paid by GymFly on your behalf that you otherwise would be obligated to pay under the AAA’s rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of these Terms shall still apply.
You can choose to reject this agreement to arbitrate by emailing us a written opt-out notice ("Opt-Out Notice"). The Opt-Out Notice must be sent no later than thirty days after the date you accept these Terms for the first time. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street number and address, city, state, and zip code), phone number and the email address(es) used to log in to the GymFly account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any amendment to this agreement to arbitrate (other than a change to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding between you and GymFly prior to the effective date of the change. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and GymFly. We will notify you of amendments to this agreement to arbitrate by posting the amended terms on the Platform at least thirty days before the effective date of the amendments and by sending notice via email to your email address on file with us. If you do not agree to the amended terms, you may close your account within the thirty day period and you will not be bound by the amended terms.
17. Relationship of the Parties.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN WITH RESPECT TO GYMFLY ACTING AS THE LIMITED PAYMENT COLLECTION AGENT SOLELY FOR THE PURPOSE OF COLLECTING PAYMENT FROM CLIENTS ON EACH OF THE FITNESS CENTERS’ BEHALF, THE RELATIONSHIP BETWEEN THE PARTIES UNDER THIS AGREEMENT IS SOLELY THAT OF INDEPENDENT CONTRACTING PARTIES. THE PARTIES EXPRESSLY AGREE THAT: (A) THIS AGREEMENT IS NOT AN EMPLOYMENT AGREEMENT, NOR DOES IT CREATE AN EMPLOYMENT RELATIONSHIP, BETWEEN GYMFLY AND YOU; AND (B) NO JOINT VENTURE, PARTNERSHIP, OR AGENCY RELATIONSHIP EXISTS BETWEEN GYMFLY AND YOU.
The Platform is controlled and operated from within the United States. Without limiting anything else, GymFly makes no representation that the Platform, Platform Materials, User Content, the Services, products, information or other materials available on, in, or through the Platform is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Platform from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of GymFly to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words "includes" and "including" and their syntactical variations shall be deemed followed by the words "without limitation."