Terms and Conditions

Last updated: July 29, 2021

These Terms and Conditions govern the use of the services offered by Fitnescity, Inc (“Fitnescity") at the Fitnescity website (the "Website"). Such services and Website together are hereinafter referred to as the "Platform." Please read these Terms and Conditions carefully before using the Platform.Your use of the Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms and Conditions, and your representation that you are twenty-one (21) years of age or older. If you object to anything in these Terms and Conditions, you are not permitted to use the Platform. These Terms and Conditions are hereinafter referred to as the “Agreement."

Cancellation, Rescheduling, Refunds & Testing Conditions

Customers may cancel or reschedule at least 24 hours prior to the beginning of the appointment. Customers who wish to reschedule or cancel their appointment may contact Fitnescity through email or phone. If a Customer cancels within 24 hours or less of the appointment time, Fitnescity will not be able provide a refund. Customers may reschedule within 24 hours but will incur a non-negotiable $25 administrative fee along with a rescheduling fee (up to the full cost of the appointment) as determined by the partner location.

Refunds: All appointments require Fitnescity to reserve equipment and block the test administrator's time. As a result, Fitnescity will only process a refund if the appointment is canceled by the Customer at least 24 hours prior to the start time. Fitnescity does not provide partial refunds.

Packages are non-refundable: Packages provide the opportunity to book appointments at a lower cost. Once the Customer purchases a package, the Customer will receive a code to schedule all the appointments included in the package. The Customer may then reschedule these appointments at no cost, as long as the Customer provides a 24-hour notice. However, Fitnescity does not provide refunds on packages, including partial refunds for unused appointments.

Packages are valid for 12 months after the date of purchase.

Variance in results from one machine to another cannot be controlled by Fitnescity. For continuity in results over time, it is encouraged to retest on the same machine to most accurately compare results.

Fitnescity Is Facilitator between Customer and Assessment Partner

Fitnescity is a communications platform for facilitating the connection between individuals seeking to receive fitness testing Services ("Customer(s)"), and Assessment Partners seeking to assist Customers by delivering these fitness testing Services (“Assessment Partner(s)") to Customers who have authorized the delivery of such Services (such services provided by Assessment Partners to be hereinafter referred to as "Assessment Services"). Customer acknowledges and agrees that the Assessment Partners act as the agent of the Customer in carrying out the Assessment Services, and that Fitnescity has no relationship with Customer other than to provide the Platform as set forth in this Agreement. Fitnescity does not have control over the quality, timing, legality, failure to provide or any other aspect whatsoever of the Assessment Partner.

Release

YOU AGREE THAT NEITHER FITNESCITY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY ASSESSMENT PARTNER OR FOR ANY ASSESSMENT SERVICES. NEITHER FITNESCITY NOR ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY CLAIM, INJURY, DEATH, OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY ASSESSMENT PARTNER. IN THE EVENT YOU HAVE A DISPUTE WITH ONE OR MORE ASSESSMENT PARTNER, YOU HEREBY RELEASE FITNESCITY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LIABILITIES, COSTS, INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES, MEDICAL FEES, LOSS OR DAMAGE OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

Use of Material

Except as otherwise provided herein, all rights to all materials, content, layout, images, text, design (and any underlying software and computer codes) of this Website are proprietary to Fitnescity and its affiliates. Users of this Website or of the Fitnescity platform ("you" or "User(s)") may browse the Website and may download material displayed on the Website for non-commercial, lawful, personal use only, provided all copyright and other proprietary notices contained on the material so downloaded are retained and such information is not modified, copied or posted on any networked computer or broadcast in any media. All other copying, reproduction, posting on any other website, republication, downloading, uploading, encoding, modification, translation, public performance or display, distribution or transmission of any portion of this Website, or the making of any derivative works from this Website, is prohibited.

Personal Trainers

When a Trainer submits their information, including personal information, description of services provided, rates, photographs and videos to Fitnescity, the Platform may immediately or in the future use and publish the content submitted by the Trainer ("Trainer Submissions”) on the Website as well as on any other type of promotional channes, including but not limited to email newsletters, social networks, online and print media, online and physical promotional materials. Any Trainer Submission transmitted to Fitnescity will be considered non-confidential. In addition, by submitting any Trainer Submission to Fitnescity, you hereby grant Fitnescity a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display and perform the Trainer Submission in connection with the Website, the Platform and Fitnescity’s business. You hereby grant each Customer a non-exclusive license to access your Trainer Submissions through the Platform and to display and publicly perform such Trainer Submissions as permitted through the functionality of the Platform and under these Terms and Conditions.

NOTE: THE TRAINER IS RESPONSIBLE FOR ACTIVE CERTIFICATIONS IN THEIR ARE OF SPECIALTY, INCLUDING BUT NOT LIMITED TO PROFESSIONAL CERTIFICATIONS, FIRST-AID CPR/AED AND LIABILITY INSURANCE. BY USING THE WEBSITE, THE TRAINER AND THE CUSTOMERS RELEASE FITNESCITY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LIABILITIES, COSTS, INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES, MEDICAL FEES, LOSS OR DAMAGE OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR THE TRAINER'S FAILURE TO MAINTAIN ACTIVE CERTIFICATIONS.

In connection with Trainer Submissions, you agree that you will not submit material that: (i) is copyrighted, subject to privacy or publicity rights or otherwise subject to third party proprietary rights unless you are the owner of such rights or have permission from the owner to submit the material and to grant Fitnescity all of the license rights granted herein; (ii) is unlawful, obscene, harassing, defamatory, libelous, pornographic, hateful, racially or ethnically offensive or is otherwise inappropriate; (iii) could damage the reputation of Fitnescity or any third party; or (iv) impersonates another person. Fitnescity reserves the right to remove any Trainer Submissions at its sole discretion and without notice or liability to you or to any other person.

Fitnescity does not endorse any Trainer Submission or any opinion, recommendation or advice therein, and Fitnescity expressly disclaims any and all liability in connection with any Trainer Submission, including any liability related to training certification and experience, and their accuracy. You understand and agree that you are fully responsible for Trainer Submissions that are false, inaccurate, offensive or otherwise objectionable, and you hereby agree to waive and hereby do waive any legal or equitable rights or remedies you may have against Fitnescity with respect thereto. Fitnescity may provide links to websites owned or operated by third parties. Fitnescity does not endorse the content or any products or services available on such websites and is not responsible for such content or its security. Your linking to any other websites from this Website is at your own risk.

Disclaimer

USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE WEBSITE AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE PLATFORM AND THE ASSESSMENT SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, GUARANTIES OF ANY RESULTS RELATED TO ASSESSMENT SERVICES, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FITNESCITY MAKES NO

WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THE CONTENT OF ANY WEBSITES LINKED TO THE FITNESCITY WEBSITE. FITNESCITY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE FITNESCITY WEBSITE AND THE PLATFORM; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF FITNESCITY'S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN.

FITNESCITY DOES NOT WARRANT THAT THE WEBSITE WILL OPERATE ERROR-FREE OR THAT THE WEBSITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS. IF YOUR USE OF THE WEBSITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, FITNESCITY SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. FITNESCITY, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THE WARRANTY OF RESULTS OR FITNESS FOR A PARTICULAR PURPOSE. FITNESCITY MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT, SERVICES, PLATFORM, SOFTWARE, TEXT, GRAPHICS OR LINKS. FITNESCITY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.

Limitation of Liability

YOU AGREE THAT FITNESCITY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY INJURIES, DEATHS, DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE PLATFORM; (II) THE LIABILITY OR FITNESS OF ANY ASSESSMENT PARTNER OR ASSESSMENT SERVICES; OR (III) IN CONNECTION WITH THE PERFORMANCE OF OR BROWSING IN THE WEBSITE OR YOUR LINKS TO OTHER WEBSITES FROM THIS WEBSITE, EVEN IF FITNESCITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU FURTHER AGREE THAT FITNESCITY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. IN NO EVENT SHALL

FITNESCITY’S TOTAL LIABILITY TO YOU FOR ANY LOSSES ARISING HEREUNDER EXCEED THE AMOUNTS PAID BY YOU TO FITNESCITY HEREUNDER.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SHOULD A JURISDICTION BE ADVERSE TO A LIMITATION OR EXCLUSION OF WARRANTIES, SUCH PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND THE OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.

Indemnity

You agree to defend, indemnify and hold harmless Fitnescity and its officers, directors, employees, agents and affiliates (each, an "Indemnified Party"), from and against any injuries, death, losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from your unauthorized use of the Website or from any breach by you of these Terms and Conditions, including without limitation any actual or alleged violation of any federal, state or local statute, ordinance, administrative order, rule or regulation. Fitnesciy shall provide notice to you promptly of any such claim, suit or proceeding and shall have the right to control the defense of such action, at your expense, in defending any such claim, suit or proceeding.