Forgot your password?

Terms of Service

Welcome to Fitnessnite!

The services offered by fitnessnite.com ("Fitnessnite" or "us" or "we" or "our") include the Websites at fitnessnite.com as well as any other related Websites, toolbars, widgets, or other distribution channels we may, from time to time, operate (collectively, "fitnessnite.com") and any other features, content, services or applications offered, from time to time, by us, or by third party Paid Service providers (collectively, the "Services").

This agreement (the "Terms of Service" or "Agreement") sets forth legally binding terms for your use of the Services. By using the Services, you agree to be bound by these Terms of Service, whether you are a "Website Creator" (which means that you have registered to utilize our tools to build a Website ("Website")), a "Member" (which means that you have registered on one of the fitnessnite.com hosted Websites), a "Visitor" (which means that you are visiting fitnessnite.com or any hosted Website), or an "Software Developer" (which means that you have been approved to build or deploy your software or anything else that receives data (an "Application/Widget") on fitnessnite.com). The term "User" refers to a Visitor or a Member or a Website Creator. By browsing or registering with, creating or using any Website, Application or Service on fitnessnite.com you are agreeing to these Terms of Service, and these Terms of Service along with any other guidelines we may post from time to time, such as our Privacy Policy (collectively, the "Guidelines") will govern your use of the Services. If you do not agree to these Terms of Service or any of the Guidelines, you must cease use of the Services.

You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If you are using or creating a Website or Application on or through fitnessnite.com as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the terms "you" and "your" in this Agreement refers to your company or legal entity.

1. Eligibility

Use of and Membership in the Services is void where prohibited. By using the Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years of age and older; and (d) your use of the Services does not violate any applicable law or regulation. Your account and Website (if applicable) may be deleted and your Membership may be terminated without warning, if we suspect that you are under 13 years of age.

2. Password

By becoming a Member or Website Creator you will also be asked to choose a password for your account. You are solely responsible for maintaining the confidentiality of your password, and fully responsible for all activities that occur under your account. You agree not to use the account, username or password of another User at any time or to disclose your password to any third party or do anything else that might jeopardize the security of your account. You agree to notify us immediately of any unauthorized use of your password or account or any breach of security and understand that we reserve the right to take legal actions against individuals who misuse accounts and memberships on fitnessnite.com.

3. Fees

Our Website building and hosting solution is offered to at a monthly or annual fee. If applicable our free solution is supported by advertising. You will also have the opportunity to upgrade your account and purchase optional Premium Services and additional features as may be made available by us, Applications, our affiliates or business partners from time to time. See sections 11-15 below for specific terms relating to our paid services and payment terms.

4. Website Content Control and User Data

You control the Websites you create using our Services and Fitnessnite does not claim any ownership rights in any text, files, images, photos, videos, sounds, musical works, comments, recommendations, forums, listings, logos, trademarks, postings, messages, tags, works of authorship, or any other work or authorship added to or submitted with any of the foregoing (collectively, "Content") posted by you or by Visitors or Members of your Websites. Therefore, Fitnessnite takes no responsibility for any Content located in your Website and Fitnessnite has no obligation to monitor such Content or yourWebsite. You are therefore responsible for the removal of any such Content that is in violation of these Terms of Service and ensuring compliance with these Terms of Service.

By visiting or becoming a Member of a Website created using our Services, you agree that the Content and information you provide during the registration process (including your email address) and other interactions with the Website may be accessed by the Website Creator and their authorized representatives and administrators, as well as any Application Developer whose Applications run on that Website. Similarly, by adding or using an Application or a service provided by one of our affiliates or business partners, you agree that the Content and information you or your Website Visitors or Members provide in the interactions with your Website as well as that Application or service may be accessed by the respective Application Developer, affiliate or business partner and their authorized representatives. We require Website Creators, Application Developers, affiliates and business partners to respect your privacy settings and our Privacy Policy, but your agreement with that Website, Application, affiliate or business partner will control how they can use the Content and information shared with them. Be sure to understand the privacy settings, terms and privacy policies of that Website, Application or service prior to your interactions. Note that Fitnessnite cannot guarantee that such third parties will comply with their contractual requirements, and Fitnessnite does not assume any liability or responsibility for any third party's actions, or for enforcing any agreements such third parties may enter into with your or with us.

As a Website Creator, you and your authorized representatives and administrators will have access to the email address of the Members of your Website, along with certain information, Content and data provided or collected during their registration and use of your Website ("Website Member Data"). Fitnessnite may also provide you with access to certain Visitor data that we collect as part of our Services (collectively with Website Member Data and other data you collect, "User Data"). You agree to have a privacy policy or otherwise make it clear to your Visitors and Members what User Data you are going to use and how you will use, display or share that data. You further agree that, as between you and Fitnessnite, subject to this Agreement and each User's rights, (i) Fitnessnite owns all right, title and interest, including all intellectual property rights, in and to the User Data collected by us, and (ii) you own all right, title and interest, including all intellectual property rights, in and to the User Data collected by you. Notwithstanding the foregoing, in order for Fitnessnite to run your Website on fitnessnite.com, you hereby grant Fitnessnite a nonexclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, fully paid-up, royalty-free right and license to (i) use, reproduce, store, modify, create derivative works of, distribute, publicly perform and display the User Data on or through fitnessnite.com and in all current and future media in which the Services may be distributed; (ii) use and disclose the User Data and related metrics in an aggregate or other non-personally identifiable manner (including, for use in targeting advertising in a non-personally identifiable manner through and in connection with fitnessnite.com); and (iii) use User Data for other purposes permitted by the Fitnessnite Privacy Policy.

5. Your Obligation to Protect User Data

If you collect or have been provided access to User Data, you hereby agree not to use, display or share User Data in a manner inconsistent with the User's privacy settings, our Terms of Service and Guidelines, and all applicable laws and regulations. You hereby further agree that your use and disclosure of User Data shall be reasonably protective of each User's rights and in no event shall you observe standards of privacy and confidentiality in connection with the use and disclosure of User Data that are less stringent than the standards set forth in our Privacy Policy. You agree to promptly delete all User Data (i) relating to any User who de-authorizes, disconnects or otherwise disassociates from your Website, Application or service, (ii) if we disable your Website, Application or service, or (iii) upon request by us or the User. Fitnessnite is not required to keep back-up copies of User Data on fitnessnite.com once the Website or User Data is deleted. Fitnessnite makes no guarantee that User Data will be safely stored on fitnessnite.com. To be safe, you should independently back-up User Data, to the extent permitted herein and applicable laws and regulations. You acknowledge that Fitnessnite may terminate the account of any User (including Members of your Website(s) or users of your Application) in accordance with this Agreement.

6. Proprietary Rights to Content

By displaying or publishing ("posting") any Content on or through the Services, you hereby grant to Fitnessnite a limited license to use, modify, publicly perform, publicly display, publish, reproduce, distribute, list information regarding, edit, translate, and make derivative works of such Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed for use solely in connection with the Services.

Without this license, Fitnessnite would be unable to provide the Services. The license you grant to Fitnessnite is non-exclusive (meaning you are free to license your Content to anyone else in addition to Fitnessnite), fully-paid and royalty-free (meaning that Fitnessnite is not required to pay you for the use on the Services of the Content that you post), transferable and sub-licensable (so that Fitnessnite is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Services), and worldwide (because the Internet and the Services are global in reach). Unless you have shared your Content with others, and they have not deleted it, this license will terminate at the time you remove your Content from the Services, but you understand and agree that your Content may continue to appear on fitnessnite.com or Websites after you remove it from the Services as portion of your Content may remain on pages cached by third parties, incorporated into RSS feeds, User profiles or other features, or archived on servers. Furthermore, when you publish any Content or information using the "everyone" or "public" settings, it means that everyone, including people off of fitnessnite.com, will have access to that information and we may not have control over what they do with it.

When you post any Content on a Website, you provide the Website Creator, other Members of that Website or the public in general with permission to view and use your Content depending on the Website's privacy settings and policies. Be sure to understand that Website's privacy settings and policies prior to posting your Content.

You represent and warrant that: (i) you own the Content posted by you on or through the Services or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Content on or through the Services does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the Services.

If a Website is removed from fitnessnite.com, the Content associated with that Website may also be deleted at the discretion of the Website Creator or Fitnessnite. We encourage you to be sure you are comfortable with this possibility before contributing your Content to a Website. You should be aware that Fitnessnite is not required and may not keep back-up copies of Content (including your Content) on fitnessnite.com once the Website or Content is deleted. Additionally, Fitnessnite makes no guarantee, either during or after the term of this Agreement, that your Content will be safely stored on fitnessnite.com and you should independently back-up your Content.

The Fitnessnite Services contain proprietary content that is protected by copyright, trademark, patent, trade secret and other laws in the United States and around the world (the "Fitnessnite Content"). Fitnessnite owns and retains all rights in the Fitnessnite Content and the Services. Fitnessnite hereby grants you a limited, freely revocable, non-sublicensable license to reproduce and display the Fitnessnite Content (excluding any software code) solely for your personal use in connection with using the Services. As between you and fitnessnite.com, all the intellectual property rights in the Fitnessnite technology, which does not include your Content, are owned by Fitnessnite or its licensors.

The Fitnessnite Services contain Content of Users and other Fitnessnite licensors. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, archive, transmit, distribute, perform, display, decompile, reverse engineer, attempt to access the source code, create derivative works from, rent or sell any Content appearing on or through the Services without permission of the Content owner.

We always appreciate your feedback or other suggestions you may have about Fitnessnite, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

7. Content Posted

Please choose carefully the content you post on any Website and that you provide to other Users. You may not use the Services to post, disseminate or communicate any obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Despite this prohibition, content communicated by other Users may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and Fitnessnite assumes no responsibility or liability for this material. If you become aware of misuse of the Services, please contact us by using this form.

Without assuming any obligation to do so, Fitnessnite may delete any Content or suspend any Website or account associated with it, that in the sole judgment of Fitnessnite violates this Agreement or that may be offensive or illegal, or violate the rights, harm, or threaten the safety of any person. Fitnessnite assumes no responsibility for monitoring the Services for inappropriate Content or conduct. If, at any time, Fitnessnite chooses, in its sole discretion, to monitor the Services, Fitnessnite nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

You are solely responsible for the Content that you post on or through any of the Services, and any material or information that you transmit to other Users and for your interactions with other Users. Fitnessnite does not endorse and has no control over the Content. Content is not necessarily reviewed by Fitnessnite prior to posting and does not necessarily reflect the opinions or policies of Fitnessnite. Fitnessnite makes no warranties, express or implied, as to the Content or to the accuracy and reliability of the Content or any material or information that you transmit to, or receive from, other Users.

8. Content/Activity Prohibited

The following is a partial list of the kind of Content and activity that is prohibited on any Website and through the use of the Services. Fitnessnite reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Services at any time, with or without prior notice, and without liability if we believe you are in violation of this provision. Fitnessnite further reserves the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation, reporting it to, and cooperating fully with, law enforcement authorities. Prohibited Content and activity includes, but is not limited to, Content or activity that in the sole discretion of Fitnessnite:
  • may constitute or contribute to a crime or tort;
  • is illegal, misleading, harmful, malicious, hateful, threatening, bullying, harassing, discriminatory, invasive of personal privacy or publicity rights, humiliating to other people (publicly or otherwise), libelous, pornographic, or that contains nudity or graphic or gratuitous violence;
  • communicates any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships, or otherwise infringes or violates someone else's rights;
  • involves sending or otherwise posting unauthorized commercial communication (such as spam);
  • engages in unlawful multi-level marketing, such as a pyramid scheme;
  • solicits login information or accessing an account belonging to someone else;
  • solicits or posts personal identifying information from other Users, or knowingly collects any information from minors under the age of 13;
  • obscures the advertisements we serve on your Website;
  • makes automated use of the system, such as using scripts, bots, spiders or scrapers, to send messages, log into accounts, or collect Users' Content or information;
  • interferes with, disrupts, impairs or creates an undue burden on the Services or the networks or services connected to the Services;
  • attempts to impersonate another person or entity, including, but not limited to, a Member or Fitnessnite official, to falsely state or otherwise misrepresent your affiliation with a person or entity;
  • provides false personal information on fitnessnite.com, or creates an account for anyone other than yourself without permission;
  • involves selling or otherwise transferring your account without our prior permission;
  • creates and maintains a Website that (i) redirects to another web page or (ii) stores or hosts content for remote loading by other web pages;
  • uploads viruses or other malicious code;
  • uses the Services to hyperlink to content not permitted on fitnessnite.com;
  • facilitates or encourages any violation of these Terms of Service.

9. Fitnessnite Marks; Templates

Fitnessnite trademarks, logos, service marks, images, trade names and other distinctive branding features used in connection with the Services are the trademarks of Fitnessnite and may not be used without permission. Other trademarks that may appear on our Services are the property of their respective owners. Fitnessnite reserves the right to include within your Website applicable Fitnessnite copyright and trademark notices for Fitnessnite and links to our Terms of Service, Privacy Policy and other Guidelines. All notices and links will be displayed consistently in such form and placement as determined by Fitnessnite. For purposes of this Agreement, all templates offered by Fitnessnite are copyrighted material and are considered part of fitnessnite.com. Such templates are offered for use to Fitnessnite users under a limited license only, and are not offered for sale or unbridled use. Such license limits use of Fitnessnite templates to Websites hosted by Fitnessnite. Fitnessnite templates may not be transferred to or hosted on another web host or Internet Service Provider.

10. User Support

As a Website Creator, you are responsible for implementing and maintaining all support for your Website(s), including answering questions from your Members and Visitors. If you are a Website Creator and have any question with regards to your account, please contact Fitnessnite directly.

11. Premium Service

Today, our Premium Services include various options for our Website Creators such as removing ads from your site, using your own domain name, removing Fitnessnite promotional links or images, and the addition of storage space and bandwidth. Current categories and prices of our Premium Services are described at fitnessnite.com. All prices are subject to change from time to time. Fitnessnite may choose to temporarily change the fees for the Premium Services for promotional or new services, and such changes are immediately effective when Fitnessnite posts the temporary promotional event or new service on fitnessnite.com. Any changes to fees for Premium Services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on fitnessnite.com. The changes shall only apply prospectively to the Premium Services you've purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars.

12. Other Paid Services

In addition to Premium Services, as a Website Creator you may purchase other paid services (collectively with Premium Services and the "Paid Services") which may be provided as a one-time transaction or recurring subscription in connection with an Application or as additional services. Such Paid Services may be provided solely by us or in collaboration with Application Developers, affiliates or business partners. You may be presented with additional terms related to a specific purchase before you confirm such transaction. Those additional terms will also govern that transaction.

Please note that if you enter into a transaction with a third-party, such as by purchasing an item through a Website hosted on fitnessnite.com, and have a dispute over the goods or services you purchased we have no liability for such goods or services. Although we may intervene in disputes between Users concerning payments, we have no obligation to do so.

13. Payments

You are responsible for paying all fees and applicable taxes associated with the Paid Services in a timely manner with a valid payment method. You authorize Fitnessnite to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein "Payment Method") for all charges to your accounts with Fitnessnite. When you provide a Payment Method to us, you confirm that you are permitted to use that Payment Method. You also authorize us to collect and store it, along with other related transaction information. When you make a purchase, you authorize us (and our designated payment processor) to charge the full amount to the Payment Method you designate for the transaction. For Premium Services, we only offer recurring payments; therefore, you agree that Fitnessnite may automatically charge the fee to your Payment Method at the beginning of each recurring period. For example, if you choose a Premium Service with a monthly plan, you will be billed every month on the anniversary date of the date you clicked the "Purchase" button. Additionally, we may offer a pre-pay payment option for payment of Premium Services ("Pre-Payment Plan"). If you opt for a Pre-Payment Plan, your Payment Method will be charged the then-current fee for that Premium Service at the commencement of each renewal period.

You acknowledge and agree that any credit card and related billing and payment information that you provide to Fitnessnite may be shared by Fitnessnite with third parties, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Fitnessnite and servicing your account.

If you pay by credit or debit card we may obtain a pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will bill your card at the time of purchase or shortly thereafter. If you cancel a transaction before completion, that pre-approval may result in your funds not otherwise being immediately available. If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee. You agree to pay Fitnessnite all charges incurred under your account for any Paid Service in which you or anyone else who uses your account (including children, family and friends) enroll in accordance with this Agreement and any applicable Paid Services terms. If your Payment Method fails or your account is past due, (a) you agree to pay all amounts due on your account upon demand and reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted, (b) Fitnessnite may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) Fitnessnite reserves the right to either suspend or terminate your Premium Services or your account with Fitnessnite, including deletion of your Website from fitnessnite.com. Except as may be set forth herein, any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to Fitnessnite within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge.

14. Taxes

You are responsible for paying any governmental taxes imposed on your use of fitnessnite.com, including, but not limited to, sales, use, or value added taxes. If requested, you will promptly furnish to Fitnessnite the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that Fitnessnite is obligated to collect such taxes, the applicable tax will be added to your billing account.

15. Money-Back Guarantee

Premium Services include a 30-day money-back guarantee. If you are dissatisfied with your service for any reason, you will receive a full refund (minus domain name registration fee and overage charges) if you cancel your paid services within 30 days of the activation of your account. The 30-day money-back guarantee does NOT apply to domain name registration or other Paid Services. Once you purchase your domain name, you are its owner and it cannot be "returned."

16. Advertising on Websites

Unless you subscribe to a Premium Service (including domain purchases), we have the right to sell, run and/or serve third-party advertising on your Website. If you are a Website Creator, you may place any advertising on your Website. Fitnessnite may establish general policies and guidelines surrounding the running of your own ads ("Advertising Policies"). When adopted, any such Advertising Policies will be linked to, and incorporated by reference into, this Agreement and are subject to change from time to time. YOU AGREE THAT Fitnessnite WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR WEBSITE. Fitnessnite reserves the right to include promotional links on Your Website(s) at no cost to Fitnessnite, unless you pay the applicable Premium Service fees to remove promotional links. Removal of promotional links does not include removal of required Fitnessnite legal notices and links to Fitnessnite Terms of Service, Privacy Policy, Fitnessnite logo, basic service information and Guidelines or any statement indicating that Fitnessnite uses Fitnessnite ID for authentication upon sign in by your Website Members.

17. Fitnessnite Platform Policies

Fitnessnite reserves the right to disable or deactivate Member accounts that are inactive for more than 90 days. In the future, we may limit the number of free Websites a Website Creator can create and may impose different bandwidth, storage or other usage restrictions than currently offered. In addition:
  • You may not use profanity or others' trademarks in the name, domain or subdomain of your Website.
  • You may not edit or remove the Fitnessnite link at the bottom of your Website
  • You may not do anything to remove, hide, or alter the appearance of advertising served on your Website by Fitnessnite.
  • The Fitnessnite ID link may not be edited and must be available in the Sign in and Sign up pages of your Website.
  • The Fitnessnite Terms of Service may not be edited and must be available in the Sign Up page of your Website.

18. Copyright Infringement

You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). In addition, we will promptly terminate without notice the Membership privileges of those determined by us to be repeat infringers. If you are a copyright owner and you believe that any content hosted on fitnessnite.com infringes your copyrights, then you may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing:
  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on our Services, such as by providing us the URLs to the content;
  • your address, telephone number, and email address;
  • a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
As a Website Creator, you agree to have a policy for removing infringing Content and terminating repeat infringers that complies with the DMCA. In addition, you agree to promptly (and in any event in no later than 24 hours) address any copyright owner's written notice (including any notices forwarded to you by Fitnessnite) that specified Content posted on a Website that you control infringes that third-party's rights (including copyrights), provided that the notice substantially complies with the requirements in the DMCA. If you receive a counter-notice from the applicable User instructing you to replace the allegedly infringing Content, you agree to promptly comply with it to the extent required by law and to forward a copy of it to Fitnessnite. Fitnessnite may remove any allegedly infringing Content without any liability to you or to the User that posted such Content. In all such matters, we strongly recommend that you consult your attorney to confirm your obligations under the DMCA and other applicable laws. You are solely responsible and liable for complying with all applicable laws in connection with your Website.

19. Your Website Subdomains

When you create Your Website, Fitnessnite gives you the flexibility to choose your own subdomain for Your Website (e.g.," developer" in the example: http://developer.fitnessnite.com) (" Website Subdomain"). Fitnessnite maintains ownership of your Website Subdomain and grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable, license solely to use the Website Subdomain on the fitnessnite.com. The Website Subdomain you choose for your Website and your fitnessnite.com account are non-transferable. You will be solely responsible and liable for any activity that occurs under your Website Subdomain and account. At any time, however, you may upgrade your account to purchase your own custom domain name.

20. Fitnessnite Communications

It is our policy to provide notifications, whether such notifications are required by law or are for Service related purposes, to you via email or, written or hard copy notice, or through conspicuous posting of such notice on our Website, as determined by Fitnessnite in its sole discretion. By providing Fitnessnite your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use you and your users email address to send other messages, such as updates, user communications, newsletters, changes to features of the Service, or Fitnessnite offers. If you or your users do not want to receive certain email messages, you may opt out by contacting our support team. Opting out may prevent you from receiving valuable messages regarding updates, improvements, offers, or communications from other Users. Fitnessnite reserves the right to send you notices about your account even if you opt out of all voluntary email notifications.

21. Third Party Content and Interaction; Third Party Sites

You agree to comply with the license and restrictions applicable to each item of Content you post, copy, access, or use. You understand that by using fitnessnite.com you may be exposed to Content that is offensive, objectionable, or indecent, and that you use fitnessnite.com at your own risk. Content from other Users or third parties is made available to you through Websites and fitnessnite.com. The inclusion of any such Content on fitnessnite.com does not imply our affiliation or endorsement of such Content. Because Fitnessnite does not control such Content, you agree that Fitnessnite is not responsible for any such Content, including without limitation, any advertising and information about third-party products or services, or the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of any such Content. Your interactions with other Users and third parties on fitnessnite.com, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the User or third party as applicable. Like with any web-based interaction, we suggest that you use caution and good judgment. You agree that Fitnessnite is not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User's or third party's use or disclosure of your personal information. If there is a dispute between you and any third party (including any User), Fitnessnite is under no obligation to become involved. You release Fitnessnite, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users and third parties. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." And, if you are not a California resident, you waive any applicable state or country statutes of a similar effect.

Additionally, Fitnessnite, Website Creators, Users or third parties may provide hyperlinks on fitnessnite.com or Websites, or any other form of link or redirection of your connection to other sites ("Third Party Sites"). Links to these Third Party Sites are provided solely for your convenience and in no way does the inclusion of any link on fitnessnite.com or any Website imply our affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. Fitnessnite expressly disclaims responsibility for the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through fitnessnite.com. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.

22. Privacy of Your Information

We care about the privacy of our Users. View our Privacy Policy at fitnessnite.com. Your information may be stored and processed in any country in which Fitnessnite and its service providers maintain facilities, including outside of the EU. In this regard, or for purposes of sharing or disclosing data in accordance with this Agreement, Fitnessnite reserves the right to transfer information outside of your country. By using the Services, you consent to any such transfer of information outside of your country.

23. Indemnity

You agree to indemnify, defend, and hold harmless Fitnessnite, its subsidiaries, and affiliates, and their respective officers, agents, co-branders or other partners, employees, and third party Paid Service providers from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys' fees) arising out of or relating to
  • any Content you submit, post, transmit, or make available through fitnessnite.com;
  • your use or misuse of the Services;
  • your connection to the Services;
  • your breach or alleged breach of this Agreement; or
  • your violation of any rights (including intellectual property rights) of a third party.
Fitnessnite reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Fitnessnite. Fitnessnite will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

24. Disclaimer of Warranties

YOUR USE OF fitnessnite.com, AND ALL WEBSITE CODE, PLATFORM CODE, APIS, APPLICATIONS, SERVICES, THIRD PARTY SOFTWARE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. fitnessnite.com, AND ALL WEBSITE CODE, PLATFORM CODE, APPLICATIONS, SERVICES, THIRD PARTY SOFTWARE, AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Fitnessnite AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.

Fitnessnite AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT fitnessnite.com, OR ANY WEBSITE CODE, PLATFORM CODE, APIS, APPLICATIONS, SERVICES, THIRD PARTY SOFTWARE, OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT fitnessnite.com, OR THE SERVER THAT MAKES fitnessnite.com, AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Fitnessnite MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON fitnessnite.com, OR YOUR WEBSITE; (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR WEBSITE; OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY OTHER CODE WITH ANY Fitnessnite TECHNOLOGY.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, AND ALL WEBSITE CODE, PLATFORM CODE, APIS, APPLICATIONS, SERVICES, THIRD PARTY SOFTWARE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Fitnessnite OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM fitnessnite.com, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

Fitnessnite IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER OR APPLICATION DEVELOPER ON fitnessnite.com, PLATFORM, APPLICATIONS OR WEBSITES.

25. Limitation of Liability

YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL Fitnessnite OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE, BUSINESS OR PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF Fitnessnite HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE SERVICES, ANY WEBSITE OR PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY OF OUR GUIDELINES (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO Fitnessnite BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.

THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN Fitnessnite (INCLUDING APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON fitnessnite.com OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

26. Changes to Fitnessnite Services

Fitnessnite reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the Fitnessnite Services or any part thereof with or without notice. Fitnessnite will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

27. Amendments

We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to you by posting a revised version on www.fitnessnite.com or elsewhere on fitnessnite.com. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of fitnessnite.com or any Website after posting of the changes constitutes your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing User on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to www.fitnessnite.com or elsewhere on fitnessnite.com. The revised version will apply to you immediately if you are a User who registers or first uses fitnessnite.com on or after the posting of the revised version.

28. Term and Termination

This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your account and end your use of fitnessnite.com at any time and for any or no reason. Fitnessnite has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of fitnessnite.com or any Website, (ii) remove and discard any Content within any Website or anywhere on fitnessnite.com or (iii) shut down a Website, with or without notice, and with no liability of any kind to you.

If you terminate your account, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.

29. Effects of Terminating

Upon deactivating your account, this Agreement terminates and your access rights to fitnessnite.com and any Websites immediately cease to exist. For Content you wish to delete from fitnessnite.com, you can delete it by going to each of the Websites to which you've contributed. Fitnessnite is not responsible for deleting Content on your behalf and Fitnessnite will not have any obligation to assist you in migrating your data or your Website(s) off of fitnessnite.com. Note that, even if Content is deleted from Fitnessnite' active servers, it may remain in our archives (although we have no obligation to archive or back-up your Content). Fitnessnite will have no obligation to refund any fees paid for Paid Services.

30. Survival

The provisions under the following sections will survive termination of this Agreement for any reason: Sections 2, 4-9, 11-20, 22-26, 29-34.

31. Law and Arbitration

This Agreement shall be governed by the laws of the State of Florida without giving effect to any principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state courts and federal courts located within the State of Florida for the purpose of litigating all such claims or disputes Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration and has to be initiated within thirty (30) days after it arises, or the cause of action is barred. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution 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. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction.

32. United States Export Controls

You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from Fitnessnite under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, Fitnessnite from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.

33. General

You agree to comply with all policies applicable to Fitnessnite and fitnessnite.com, and those of our third party Paid Service providers, which policies are either posted on fitnessnite.com or provided to you by a link in these Terms of Service. In addition, you agree to comply with all applicable laws. The failure of Fitnessnite to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Your accounts are non-transferable. The parties are independent contractors with respect to each other. You may not delegate your duties under this Agreement or assign this Agreement, in whole or in part. Fitnessnite may assign this Agreement in whole or in part in its sole discretion without your consent and without notice. Any unauthorized use of any Fitnessnite computer system is a violation of this Agreement and certain federal and state laws. Such violations may subject you and your agents to civil and criminal penalties. This Agreement, including links to any third party Paid Service provider terms and conditions, constitutes the entire agreement between you and Fitnessnite and governs your use of fitnessnite.com, superseding any prior agreements (whether written or oral) between you and Fitnessnite regarding the subject matter hereof. The other Users of fitnessnite.com are intended third party beneficiaries of your obligations under this Agreement. A party will not be liable for non-performance or delay in performance (other than of obligations regarding payment of money) caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any "act of God". Nothing in this Agreement shall prevent us from complying with the law and applicable regulations.

[Last updated: February 20, 2012]



© Copyright 2017 Fitnessnite, all rights reserved