These TERMS OF SERVICE (hereinafter “Agreement”) are entered into between each User (hereinafter “User”) and Candice McField Fitness, LLC, a Kansas Limited Liability Company having an address of PO Box 861153, Shawnee, KS 66286 (hereinafter “Provider”) (the User and Provider are hereinafter each referred to individually as a “Party” and are also referred to collectively as “Parties”). This Agreement is effective as of the earliest date that the User accesses the Service through the Website (hereinafter “Effective Date”).
• “User” refers to each party that creates at least one Login to access the Service or that otherwise accesses the Website.
• “Login” refers to any information associated with a User, such as a user name and password, or the like, that allows the User to access portions of the Service that are not otherwise available to the User.
• “Service” may include, among other things, personal training related information and services made available to the User through the Website and/or through any other communicative means including but not limited to email, phone, and the like. The Service may include allowing the User to access information and content on the Website, which may or may not be related to personal training.
• “Website” refers to the website www.candicemcfield.com and any other website which Provider utilizes to implement the Service.
II. SERVICE & PAYMENT
• Service. Payment for each term is due in advance. The amount of payment required for the Service is subject to change and, specifically, is subject to increase without warning. In the event that User is dissatisfied with a price increase, User’s sole recourse is to discontinue the Service. So long as User has paid in full in advance for User’s next Term, Provider shall endeavor to: provide User the ability to create one or more Logins, and allow User to access the Website and the Service through the Website.
• The Service may be changed from time to time at Provider’s sole discretion. If at any time the User is dissatisfied with any change in the Service the User’s sole recourse is to discontinue the Service.
• User may not transfer its Login to any other party. User shall provide no Login to, and shall allow no party to access, using User’s Login, the Service. USER SHALL NOTIFY PROVIDER IMMEDIATELY of any known access of the Service by any third party using User’s Login.
III. SERVICE FAILURE
• In the event of any failure on the part of Provider to provide the Service, such as the Website being unavailable or not functioning properly, Provider shall endeavor to restore functionality of the Service within a reasonable amount of time. In the event that the Service is not restored within a reasonable amount of time, User’s sole recourse shall be to discontinue use of the Service.
IV. MATERIALS, SOFTWARE, & IP
• Materials. User recognizes and agrees that: (i) all materials provided through the Service, including but not limited to videos, audio clips, text, photos, graphics, and the like, are the property of Provider or its affiliates, licensors, and the like and are protected by copyright, trademark, trade secret, patent, and/or other intellectual property laws; and (ii) User does not acquire any right, title, or interest in or to the materials through this agreement except the limited and temporary right to use them as necessary for their use of the Service.
• User shall not copy, publish, upload, post, transmit, distribute or in any way modify any materials accessed or obtained through the Service, except that User may DOWNLOAD ONE COPY of such material on a single computer for personal, non-commercial use, provided any copyright, trademark, author attribution and other proprietary notices and legends are not altered or removed.
V. ONLINE POLICIES
VI. EACH PARTY’S WARRANTIES
• User’s Identity. By accessing www.candicemcfield.com, User represents: (i) that he/she has accurately identified herself through his/her Account and will maintain the accuracy of such identification; and (ii) that he/she is an individual 18 years or older.
• Right to Do Business. Each Party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
• Disclaimers. The service is provided “AS IS” and “AS AVAILABLE,” and Provider makes no warranties, either express or implied or arising from a course of dealing, usage, trade or practice, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or of noninfringement of intellectual property rights.
• Provider makes NO warranty that the Service will not be interrupted, hindered or otherwise negatively affected at times by software or other issues of any kind. Provider makes no warranty that there will be 100% uptime of the Service or the Website or that there will not be interruptions to the Service.
• Provider does NOT warrant that material on the Website will be complete and accurate or that it will not contain typographical errors, technical inaccuracies, and the like. Provider assumes no liability or responsibility for errors or omissions in the content of the web site.
• User agrees to NOT use the Website, the Service, or any content or information or software related thereto for any purpose that is unlawful or prohibited by this Agreement.
• User agrees to indemnify and hold Provider and its subsidiaries, parents, affiliates, officers, directors, agents, employees, and the like, harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of this Agreement or arising out of User’s violation of any law or the rights of any third party.
VII. LIMITATION OF LIABILITY.
IN NO EVENT: (a) Will Provider’s liability arising out of or related to this agreement exceed the total fees paid by User to Provider for the service; and (b) Will Provider be liable for any consequential, indirect, special, incidential, exemplary or punitive damages. The liabilities limited by this section 7 apply: (i) To liability for negligence; (ii) Regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) Even if Provider is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iv) Even if User’s remedies fail of their essential purpose. If applicable law limits the application of the provisions of this Section 7, Provider’s liability will be limited to the maximum extent permitted by law.
• User’s use of the Service and/or the Website is at the USER’S OWN RISK. Provider shall not be liable for any damages to, or viruses that may infect, any computer equipment or other property on account of User’s or any other person’s access to, use of, or browsing the Website, or downloading of any material, data, text, images, video or audio from the Website, or any other use of the Website or of the Service. Provider shall not be liable for any incidental or consequential damages, lost profits, lost data, indirect damages, or the like, even if Provider has been informed of the possibility thereof.
VIII. MEDICAL WARNING, DISCLAIMER AND RELEASE.
By accessing our website, User represents that he/she has consulted with a Physician regarding User’s potential use of the service, prior to the beginning of the service, and that the physician consents to User’s use of the service. The content of the website and any information otherwise obtained by user through the service is provided for information purposes only and User uses such information and content AT THE VOLUNTARY, SOLE RISK OF THE USER. Provider does not guarantee the accuracy of, or assume any liability for, the content of articles, product descriptions, or the like, or any other materials on or accessed through the Website, or any other information obtained by User through the Service. Provider does not guarantee or warrant any specific test, product, or procedure presented or described on or accessed through the Website or otherwise obtained by User through the Service. RELIANCE UPON ANY INFORMATION OR USE OF ANY PRODUCTS PRESENTED ON OR ACCESSED THROUGH THE WEBSITE OR OTHERWISE DISCLOSED THROUGH THE SERVICE IS AT THE SOLE RISK OF THE USER. Neither the content on, or accessed through, the website, nor any information or advice received by User through the service, should be relied upon for medical diagnosis or treatment or as a substitute for professional medical advice. PROVIDER IS NOT ENGAGED IN THE RENDERING OF MEDICAL ADVICE OR SERVICES. USER AGREES THAT HE/SHE SHALL NOT DISREGARD MEDICAL ADVICE OR DELAY SEEKING SUCH ADVICE IN RESPONSE TO CONTENT ON, OR ACCESSED THROUGH, THE WEBSITE OR OTHERWISE OBTAINED THROUGH THE SERVICE. USER RELEASES AND RELIEVES, AND AGREES TO RELEASE AND RELIEVE, PROVIDER OF ANY AND ALL LIABILITY FOR ANY INJURIES, CLAIMS OR DAMAGES ARISING OUT OF USER’S USE OF THE SERVICE.
• Products and services offered through the Website or the Service are only offered in jurisdictions where they may be legally offered.
• Testimonials, case studies, and examples found at the Website or otherwise provided through the Service are unverified results that have been forwarded to Provider by Users and/or third parties, and may not reflect the typical purchaser’s experience, may not apply to the average person and are not intended to represent or guarantee that anyone will achieve the same or similar results. If Provider discloses typical results based on information provided by a manufacturer or other third party source, User should presume that the typical results as stated are more reliable than the testimonials and other examples found at the Website or otherwise provided through the Service, however User should also always perform due diligence and not take such typical results at face value. Provider is not responsible for any errors or omissions in typical results information supplied by manufacturers or other third parties. If a product or service is relatively new, it may not have been available for purchase long enough to provide an accurate results history.
• DISPUTE RESOLUTION: If a dispute arises between User and Candice McField Fitness LLC, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Candice McField Fitness agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to email@example.com. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
LAW AND FORUM FOR DISPUTES: These Terms of Service will be governed by and construed in accordance with the laws of the State of Kansas, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Johnson County, Kansas, and you consent to the jurisdiction of such courts.
ALTERNATIVE DISPUTE RESOLUTION OPTION: For any claim (excluding claims for injunctive or other equitable relief), the User may elect to resolve the dispute in a cost effective manner through two methods:
- Facilitative Mediation Option: The User must FIRST exercise this option to resolve any dispute with Candice McField Fitness LLC. In the event a party elects mediation, they shall initiate such mediation through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the mediation shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the mediation shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; c) the mediation method used will be the Facilitative Mediation Method.
- Arbitration Option: Binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
FILING OF CLAIMS: All claims you bring against Candice McField Fitness LLC must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Candice McField Fitness LLC may recover attorneys’ fees and costs up to $1,500, or the maximum permitted by law, provided that Candice McField Fitness has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
IX. MEMBERSHIP TERMS, CANCELLATION AND REFUND POLICY
REFUND POLICY: Training with Candice PROGRAMS: Because the User is provided with substantially all of the workout/fitness plans and videos in advance, we unfortunately are unable to provide refunds, once the User purchases our services. DUE TO THE UNIQUE NATURE OF OUR SERVICES, PLEASE BE AWARE OF OUR REFUND POLICY. IN ADDITION, A YEARLY COMMITMENT IS REQUIRED.
CMF eCourses: Because the User is provided with substantially all of the course materials, workout/fitness plans and videos in advance, we unfortunately are unable to provide refunds, once the User purchases our services. DUE TO THE UNIQUE NATURE OF OUR SERVICES, PLEASE BE AWARE OF OUR REFUND POLICY.
CMF Corporate Clients: Because the User is provided access to CMF’s online portal and CMF’S exclusive exercise library, we unfortunately are unable to provide refunds, once the User purchases our services. DUE TO THE UNIQUE NATURE OF OUR SERVICES, PLEASE BE AWARE OF OUR REFUND POLICY. IN ADDITION, A YEARLY COMMITMENT IS REQUIRED.
CANCELLATION: User may cancel/terminate subscription through the website or User may provide notice of cancellation/termination to Provider by emailing Provider from the “Contact Us” page of the Website. In the “Brief Summary of Inquiry” Box, type the word “NOTICE OF CANCELLATION ”. Users on payment plans may stop using the Services at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees. Users on payment plans will be billed 100% of your remaining contract obligation and is due upon cancellation.
EFFECTS OF TERMINATION: Following any termination, User will no longer have access to features of the Members Area of the Website. The following provisions will survive termination of this Agreement: (i) any obligation of User to pay for Service rendered before termination; and (ii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
PLACING MEMBERSHIPS ON HOLD: Requests for placing a membership on hold will be honored for medical reasons and are subject to management approval. There is a $15.00 fee to place memberships on hold. Membership suspension must not exceed SIX (6) months.
• Commissions. If the Website links to a product or service, User agrees that Provider may get paid a commission if User purchases the product or service through the Website link.
• Secure Shopping. If User’s computer or web browser does not support a level of security required at any time by Provider or its servers, or any third party provider or its servers, Provider may deny User the ability to make one or more purchases, of any product or service, through the Website or Service. By non-limiting example, this may include a level of security that supports Secure Sockets Layer (SSL) technology.
• Notices. Provider may send notices pursuant to this Agreement, by e-mail, to any of User’s email addresses associated with User’s Account, and such notices will be deemed received the day after they are sent. Provider may send notices pursuant to this Agreement, other than by e-mail, to any of User’s physical addresses associated with User’s Account, and such notices will be deemed received three days after they are sent.
• No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. Provider’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
• Assignment & Successors. User may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Provider may assign any of its rights and duties under this Agreement to any party at any time without notice to User. Except to the extent forbidden in this section, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the Parties.
• Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
• Certain Notices. Pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies User that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
• Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither Party has relied upon any such prior or contemporaneous communication.
USER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS & CONDITIONS OF THIS AGREEMENT.
3 DAY (5 DAY FOR CA & HI) COOLING OFF PERIOD: YOU THE USER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.