LAST UPDATED: January 18, 2023
1. DESCRIPTION OF SERVICE; MINIMUM AGE REQUIREMENT
A. Description of Service. CALISTHENICS.COM is your personal daily health, fitness and lifestyle destination. Through cutting-edge content, interactive tools and an engaged community, CALISTHENICS.COM will help you take action to make the most of your life, your time, your body and your world, and enjoy sharing in our community.
2. MODIFICATIONS TO TERMS
B. Your Obligation to Stay Current. We encourage you to check back regularly to review these Terms.
3. MODIFICATIONS TO SERVICE
We reserve the right to change the URL, modify or discontinue, and restrict or block access to, the Service without notice to you. We may modify or remove any Content (as defined below) from the Service at any time without notice to you, including the removal of Content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Occasionally, there may be information on the Service that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any such information on the Service or on any related website or Mobile Application is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Service or on any related website or Mobile Application, except as required by applicable local, state, federal or international laws, regulations, or statutes (collectively, “Applicable Law”). No specified update or refresh date applied to the Service or on any related website or Mobile Application should be taken to indicate that all information on the Service or on any related website or Mobile Application has been modified or updated.
4. CONTENT ON THE SERVICE; ACCOUNTS; COMMUNITY SERVICES
A. Content Protected by Intellectual Property Rights; No Warranty. Any content available through the Service, including tools, Mobile Applications, software, text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship (collectively, “CALISTHENICS.COM Content”) is protected by the intellectual property rights of CALISTHENICS.COM or its licensors. CALISTHENICS.COM, ITS LICENSORS, AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT:
i. THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT; OR
ii. THE SATISFACTION OF ANY LAWS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUGS OR OTHER HEALTH-RELATED PRODUCTS AND SERVICES.
B. Your Warranties Regarding Your Content. By displaying or publishing (“posting”) any text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information or other works of authorship (collectively, “User Content”, and, together with CALISTHENICS.COM Content, the “Content”) on the Service, you warrant and represent the following:
i. you own all rights in the User Content or, alternatively, you have sufficient rights in the User Content to grant to CALISTHENICS.COM the rights described in these Terms;
ii. you will pay all license fees, clearance fees, and other financial obligations of any kind, arising from any use of the User Content in connection with posting it to the Service;
iii. you are the individual pictured, depicted, and/or heard in the User Content, or you have obtained permission from each person (including consent from parents or guardians for anyone under the age of eighteen (18)) who appears and/or is heard in the User Content to grant the rights to CALISTHENICS.COM described in these Terms; and
iv. the User Content is not defamatory, and does not infringe the intellectual property rights, privacy, rights to publicity or any other legal or moral rights of any third party.
C. Establishing an Account. We may request that you open an account (“Account”) to access certain features of the Service. You must create an Account to access these features. When creating an Account, you must provide us with accurate and complete registration information as prompted. You must promptly notify us if any of this information changes. If you fail to provide or update this information, we may suspend or terminate your right to access the Service, including suspending or terminating your Account. You may be asked to create a password. You must keep your password confidential. You will be responsible for all use of your password and Account, including, without limitation, any use by any unauthorized third party. You must notify us if you believe your password or Account has been obtained or may be accessed or used by an unauthorized person or entity. In addition, you must notify us immediately if you become aware of any breach or attempted breach of the security of the Service. We recommend that you change your password often. Under no circumstances should you respond to a request for your password, particularly a request from an individual claiming to be our employee or someone operating on our behalf, as we will never ask you for your password.
D. Account Security. CALISTHENICS.COM cares about the integrity and security of your Account information. However, CALISTHENICS.COM cannot guarantee that unauthorized third parties will never be able to defeat CALISTHENICS.COM’s security measures or use any Account or personal information you provide to us for improper purposes. You acknowledge that you provide personal information and establish your Account at your own risk. Furthermore, you are entirely responsible for any and all activities that occur under your Account. CALISTHENICS.COM will not be liable for any loss that you may incur as a result of someone else using your Account, either with or without your knowledge. You could be held liable for losses incurred by CALISTHENICS.COM or another party due to someone else using your Account. You may not use anyone else’s Account at any time, without the permission of the Account holder. Your Account is unique to you and may not be transferred to any third party.
E. Community Services. CALISTHENICS.COM provides a number of means by which you may communicate with other users and with us, including various communication and personalization tools and services that are part of our CALISTHENICS.COM community (collectively, the “Community Services”). The Community Services may include comments, discussion forums, and listings, in which you or other users may post content, messages, materials or other items on the Service. All of your communications made to or through these other means or our Community Services, as well as any attachments to those communications or otherwise submitted to us (such as documents, photographs and videos) are included in the definition of “User Content,” and are subject to the terms for User Content as set forth herein. You are solely responsible for your use of such Community Services and use them at your own risk. No action should be taken based upon any of the information contained in the Community Services. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any opinion, advice, or information contained on the Service, including the Community Services. All statements, information and other User Content submitted by users are solely the opinions of users, and not of CALISTHENICS.COM. You are responsible for all usage and activity in the Community Services through your username and password, including use of your username and password by any third party. You should be aware that disclosure in the Community Services of your full name, street address or other personal information raises safety concerns and may result in solicitations from third parties or unwanted communications. We disclaim any responsibility or liability arising from your disclosure of such personal information, or any other information, in the Community Services.
5. OWNERSHIP OF RIGHTS; LICENSE RIGHTS; USER SUBMISSIONS
A. Ownership of Your User Content. You retain ownership of your rights in any User Content you post to the Service, subject to the non-exclusive rights that you grant to us as described in these Terms.
B. Your License to CALISTHENICS.COM
i. Subject to your right to terminate your license to us as described in Section 5(C) below, you hereby grant CALISTHENICS.COM an irrevocable, perpetual, worldwide, royalty-free, freely transferable, freely sub-licensable (through unlimited levels of sublicense), non-exclusive license to use, reproduce, modify, transmit, distribute, publicly perform and display (including in each case by means of a digital audio and video transmission), advertise in, on, and around, and create derivative works of the User Content you submit or make available for inclusion on or through the Service, and to incorporate such User Content into other works in any form, media, or technology now known or later developed.
ii. To the extent permitted under Applicable Law, you also hereby waive any moral rights you may have under the Applicable Law of any jurisdiction in the User Content you submit or make available on or through the Service. We may (but are not obligated to) display your User Content, including your username and your actual name (according to the preferences you select).
C. Your Right to Terminate the License. At any time, you may modify or remove from the Service any User Content consisting of photos, graphics, audio or video that you have submitted or made available for inclusion on or through the Service (but not, for clarity, any User Content solely in the form of text that you have posted to the Community Services). Your removal of such User Content from the Service will terminate our license to such User Content. But, if prior to such removal or modification, CALISTHENICS.COM has distributed, or developed specific plans to distribute, any electronic, printed, or other materials containing such User Content (e.g., in advertising, promotion or otherwise), then CALISTHENICS.COM and its licensees have a limited right to continue to distribute those materials. You may terminate this limited license by sending us written notice to stop distributing the materials, in which event we will stop distributing the materials within thirty (30) days. Your notice must be sent through our “Contact Us” web page located at www.CALISTHENICS.COM/contact-us, have a subject heading of “REMOVE CONTENT,” and include your telephone number and email address. In addition, the notice must clearly identify the User Content at issue and contain statements that you own or have an exclusive right to the User Content and that all the information in the notice is true and correct. The thirty (30) day period for CALISTHENICS.COM to stop distributing your User Content begins only once CALISTHENICS.COM has received a notice complying with the requirements of this Section 5(C).
D. User Submissions. When you submit ideas, suggestions, documents, or proposals (collectively, “Submissions”) to CALISTHENICS.COM via the Service, email or other forms of communications, you represent, warrant, and agree that: (i) your Submissions do not include confidential or proprietary information; (ii) if we so choose, CALISTHENICS.COM may use and disclose your Submissions in any way; (iii) CALISTHENICS.COM has wide access to submissions, designs, concepts, ideas, and other materials, and that new submissions, designs, concepts, ideas, and other materials, are constantly being submitted to it or being developed by its own employees, agents, consultants or representatives. You also acknowledge that such submissions, designs, concepts, ideas, and other materials, may be competitive with, similar to, or identical to your Submissions and/or each other in design, concept, style, or other respects; and (iv) CALISTHENICS.COM has no obligation to pay or reimburse you for your Submissions or our use of your Submissions.
6. PROHIBITED CONTENT
You must not post to the Service any Content that, as reasonably determined by CALISTHENICS.COM is:
A. untrue, misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive to another person’s privacy or protected data, hateful, or racially or otherwise objectionable;
B. infringing upon a third party’s intellectual property rights, including any patent, trademark, trade secret, copyright, or right of publicity, or content that is the subject of any claim of infringement or violates any unfair competition law;
C. of a type that you do not have a right to transmit under any law or under contractual or fiduciary relationships, such as proprietary and confidential information;
D. unsolicited, undisclosed or unauthorized advertising;
E. software viruses or any other malicious computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
F. data or information obtained through access that was not authorized by the owner, or that you are not authorized to post; or
G. in violation of any applicable local, state, national or international law (including export laws).
7. PROHIBITED CONDUCT; LIQUIDATED DAMAGES FOR SPAM
A. Prohibited Conduct. You must not do, or attempt to do, any of the following, as reasonably determined by CALISTHENICS.COM, subject to Applicable Law:
i. access or use the Service in any way that is not in compliance with any applicable local, state, national or international law (including export laws), contracts, intellectual property rights or constitutes the commission of a tort, or for any purpose that is harmful or unintended (by us), or other than in full compliance with these Terms;
ii. access, tamper with, or use services or areas of the Service that you are not authorized to access;
iii. alter information on or obtained from the Service;
iv. tamper with postings, registration information, Account information, profiles, Submissions or
CALISTHENICS.COM Content belonging to CALISTHENICS.COM or its licensors, or the User Content of other users of the Service, including within the Community Services;
v. use any robot, spider, scraper or other automated means or interface not provided by us to access the Service or extract data or gather or use information, such as email addresses, available from the Service or transmit any unsolicited advertising, “junk mail,” “spam,” or “chain letters”;
vi. frame any part of the Service, or link to the Service, or otherwise make it look like you have a relationship to us or that we have endorsed you or your User Content for any purpose except as expressly permitted in writing by CALISTHENICS.COM;
vii. impersonate or misrepresent your affiliation with any person or entity;
viii. reverse engineer any licensed software, Mobile Application, tools or any other aspect of the Service or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Service;
ix. send to or otherwise impact us or the Service (or anything or anyone else) with harmful, illegal, malicious, deceptive or disruptive code such as a virus, “spyware,” “adware” or other code that could adversely impact the Service or any recipient; or
x. take any action which might impose a significant burden (as determined by us) on the Service’s infrastructure or computer systems, or otherwise interfere with the ordinary operation of the Service.
B. Liquidated Damages. IF YOU, EITHER DIRECTLY OR INDIRECTLY, SEND UNSOLICITED COMMERCIAL EMAIL OR ADVERTISING, BULK EMAIL, SPAM, OR CHAIN LETTERS (COLLECTIVELY, “UNSOLICITED EMAIL OR OTHER COMMUNICATION”) THROUGH THE SERVICE, YOU ACKNOWLEDGE THAT YOU WILL HAVE CAUSED SUBSTANTIAL HARM TO CALISTHENICS.COM, BUT THAT THE AMOUNT OF THE HARM WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN. AS A REASONABLE ESTIMATION OF SUCH HARM, YOU WILL PAY CALISTHENICS.COM FORTY U.S. DOLLARS ($40) FOR EACH SUCH UNSOLICITED EMAIL OR OTHER COMMUNICATION THAT YOU ARE RESPONSIBLE FOR BEING SENT.
8. MONITORING OF SERVICE CONTENT; RESOLUTION OF USER DISPUTES
A. No Duty to Monitor. We are under no obligation to restrict or monitor the Service or any Content in any way. IT WOULD BE IMPOSSIBLE FOR CALISTHENICS.COM TO MONITOR THE ACCURACY OR RELIABILITY OF ALL OF THE CONTENT AVAILABLE THROUGH THE SERVICE. However, we reserve the right to modify or remove any Content at any time. Some of this monitoring may be done by users of the Service who have volunteered their time. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including other users, are those of the respective author(s) and not of CALISTHENICS.COM. CALISTHENICS.COM neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Service.
B. Right to Resolve Disputes CALISTHENICS.COM has the right, but not the obligation to attempt to resolve disputes between users relating to the Service and CALISTHENICS.COM’s resolution of a particular dispute does not create an obligation to resolve any other dispute. CALISTHENICS.COM’s resolution of any dispute is final with respect to the Service.
9. INTELLECTUAL PROPERTY; PROTECTION OF CONTENT
A. Intellectual Property. CALISTHENICS.COM owns, or is the licensee to, all right, title and interest in and to the Service and the CALISTHENICS.COM Content, including all rights under patent, copyright, trade secret, trademark, right of publicity, or unfair competition law, and any and all other proprietary rights, including all applications, renewals, extensions and restorations thereof.
B. License by CALISTHENICS.COM to You. You must respect the intellectual property laws protecting the Service and the Content. CALISTHENICS.COM grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights CALISTHENICS.COM has in the Service and the Content, to privately display and perform Service and the Content on your computer or device for your own personal, noncommercial purposes.
C. Reservation of Rights. On its own behalf and the behalf of its licensors, CALISTHENICS.COM reserves all rights in the Content, including any software, not expressly granted in this Section 9. CALISTHENICS.COM does not in any way grant any other rights to you. Except as expressly stated in this Section 9, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works, adapt, translate, decompile, reverse-engineer, disassemble or otherwise attempt to derive source code of any Content or the Service, including any software, without prior written consent from CALISTHENICS.COM or other third-party owner of the rights in that Content or the Service (if any).
11. TERMINATION, SUSPENSION OR CANCELLATION
A. Right to Terminate. We may, at any time, without notice to you, terminate, suspend, or block your access to the Service and your Account if:
i. we believe in our sole discretion that you may have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of CALISTHENICS.COM, our users, or any other person;
ii. requested by law enforcement or other government agencies; or
iii. your Account has extended periods of inactivity.
B. Notice of Termination. If Applicable Law requires us to provide notice of termination, suspension, or cancellation, we may give prior or subsequent notice by posting it on the Service or by sending a communication to any address (email or otherwise) that we have for you in our records.
12. DEALINGS WITH MERCHANTS; LINKS; SOCIAL MEDIA
B. Transactions with Third Parties. Your transactions and other dealings with third party merchants or advertisers that are found on or through the Service, including “click to purchase,” “co-registration,” and other similar programs, including payment and delivery of related goods or services, are solely between you and such merchant or advertiser.
You agree to hold CALISTHENICS.COM and its subsidiaries, affiliates (for example, those listed at www.calisthenics.com), officers, directors, employees, agents, attorneys, independent contractors, licensors, experts, content providers, advisors, vendors, and suppliers, and each of their respective successors and assigns (collectively, the “Indemnified Persons”), harmless from, and indemnify them for, all damages, costs, expenses and other liabilities, including reasonable attorneys’ fees and expenses, relating to any third party claim arising out of or related to: (i) your access to and use of the tools, software, and other aspects of the Service and the Content; (ii) your violation of these Terms, and any Applicable Law or the rights of another person or party; (iii) any dispute you have with any user of the Service and any dispute you have related to any merchant or advertising found on or through the Service; (iv) CALISTHENICS.COM’s resolution (if any) of any dispute you have with any user of the Service; (v) your improper authorization for CALISTHENICS.COM to collect, use or disclose any User Content provided by you; and (vi) any disclosures made with your permission.
14. DISCLAIMER AND WARRANTIES
A. THE SERVICE DOES NOT PROVIDE MEDICAL ADVICE. THE SERVICE IS FOR CONSUMER EDUCATIONAL USE ONLY. NOTHING CONTAINED IN THE SERVICE IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. THE SERVICE IS PROVIDED TO EDUCATE CONSUMERS ON HEALTH CARE AND MEDICAL ISSUES THAT MAY AFFECT THEIR DAILY LIVES. THE SERVICE DOES NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT. WE ADVISE USERS TO ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS REGARDING PERSONAL HEALTH OR MEDICAL CONDITIONS. NEVER DISREGARD, AVOID OR DELAY IN OBTAINING MEDICAL ADVICE FROM YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICE. IF YOU HAVE OR SUSPECT THAT YOU HAVE A MEDICAL PROBLEM OR CONDITION, PLEASE CONTACT A QUALIFIED HEALTH CARE PROFESSIONAL IMMEDIATELY. IF YOU ARE IN THE UNITED STATES AND ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CALL 911 OR CALL FOR EMERGENCY MEDICAL HELP ON THE NEAREST TELEPHONE.
B. NO ENDORSEMENT. CALISTHENICS.COM DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE SERVICE. RELIANCE ON ANY INFORMATION PROVIDED BY CALISTHENICS.COM, CALISTHENICS.COM EMPLOYEES, OTHERS APPEARING ON THE SERVICE AT THE INVITATION OF CALISTHENICS.COM, OR OTHER VISITORS TO THE SERVICE IS SOLELY AT YOUR OWN RISK.
C. YOU ACCEPT THE SERVICE “AS-IS”. YOU ACCEPT THE SERVICE “AS-IS”. WE, AND OUR LICENSORS, CANNOT AND DO NOT GUARANTEE OR WARRANT AGAINST ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA OR USER CONTENT. USERS OF THE SERVICE ARE RESPONSIBLE FOR MAINTAINING A MEANS EXTERNAL TO CALISTHENICS.COM FOR THE RECONSTRUCTION OF ANY LOST DATA OR USER CONTENT. CALISTHENICS.COM PROVIDES THE SERVICE “AS IS” AND “AS AVAILABLE”. THAT MEANS THAT THE INFORMATION CONTAINED ON OR PROVIDED THROUGH THE SERVICE IS INTENDED FOR GENERAL CONSUMER UNDERSTANDING AND EDUCATION. ANY ACCESS TO THE SERVICE IS VOLUNTARY. WE WILL REGARD ALL ACCESS AS VOLUNTARY AND AT THE SOLE RISK OF THE USER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CALISTHENICS.COM MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, TOOLS, SOFTWARE, OR CONTENT INCLUDED ON THE SERVICE. CALISTHENICS.COM MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CALISTHENICS.COM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE URGE YOU TO KEEP BACKUP COPIES OF YOUR DATA AND USER CONTENT, IF ANY, THAT YOU MAINTAIN ON OR USE WITH THE SERVICE. IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING PROPERTY, MATERIAL, EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR ANY RESULTING COSTS OR DAMAGES.
15. EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE INDEMNIFIED PERSONS ARE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, STATUTORY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF THE INDEMNIFIED PERSONS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.
16. COPYRIGHT INFRINGEMENT / DMCA
A. Procedures to Submit a Notice of Claimed Copyright Infringement. CALISTHENICS.COM has a zero tolerance policy for infringement of copyrights and other intellectual property rights. If you believe in good faith that any Content made available through the Service infringes upon your intellectual property rights, you may submit a notice of claimed infringement to us (a “NOCI”) by providing the following information in writing to us at email@example.com (“Designated Agent”):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property right that has been allegedly infringed;
2. Identification of the works claimed to have been infringed, or if this is a single notification of a copyright infringement claim covering multiple copyrighted works on the Service, as permitted under the Digital Millennium Copyright Act, 17 U.S.C. 512 (“DMCA”), a representative list of such works on the Service;
3. Identification of the Content that is claimed to be infringing or to be the subject of infringement activity and that is to be removed or access to which is to be disabled, including information reasonably sufficient to permit CALISTHENICS.COM to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party, including address, telephone number and e-mail address;
5. A statement that the complaining party has a good faith belief that the use of the Content is not authorized by the copyright owner or other intellectual property rights owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information in the NOCI is accurate and that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the above notice requirements of this Section, your NOCI may not be valid.
When a complete and proper NOCI is received by the Designated Agent, it is CALISTHENICS.COM’s policy to expeditiously investigate the claim and take appropriate action, as determined by us in our sole discretion. Such action may include without limitation: (i) removing or disabling access to the Content or other material identified in the NOCI; (ii) notifying the applicable CALISTHENICS.COM user that we have removed or disabled access to such material; and (iii) terminating such CALISTHENICS.COM user’s Account.
Only notices of suspected intellectual property rights infringement should be sent to the Designated Agent. For all other requests for technical support, feedback, comments, and other communications, please contact Customer Support.
B. Procedures to Supply a Counter-Notice to the Designated Agent. If you, as a CALISTHENICS.COM user, believe that the Content that was removed or to which access was disabled is not infringing, or if you believe you have obtained all required rights from their owners, the owners’ agent, or pursuant to the law, you may send a counter-notice containing the following information to the Designated Agent:
1. Your physical or electronic signature;
2. Identification of the Content that has been removed or to which access has been disabled and the location at which the Content or other material appeared before it was removed or access to it was disabled;
3. A statement, under penalty of perjury, that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content to be removed or disabled; and
4. Your name, address, telephone number, e-mail address and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside the United States, for any judicial district in which CALISTHENICS.COM may be found, and that you will accept service of process from the person who provided the NOCI to CALISTHENICS.COM or such person’s agent.
If a counter-notice is received by the Designated Agent, CALISTHENICS.COM may send a copy of the counter-notice to the original complaining party that submitted the NOCI informing the complaining party that CALISTHENICS.COM may replace the removed Content and/or cease disabling it in ten (10) business days following receipt of the counter-notice unless the complaining party notifies the Designated Agent that it has filed an action seeking a court order to restrain the CALISTHENICS.COM user from engaging in infringing activity relating to the Content that was the subject of the NOCI.
C. It is our policy to terminate, in appropriate circumstances, any Account or user for repeated infringement of intellectual property rights, including copyrights, and we also reserve the right to terminate an Account or user for even one instance of infringement.
D. CALISTHENICS.COM may access, preserve and disclose to third parties any of your Account information, User Content or data (including personally identifiable information and private communications) related to a written complaint of copyright infringement if we believe in our sole discretion that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint.
17. CUSTOMER SUPPORT
We have no obligation to provide customer support. However, we may provide you with customer support from time to time, at our sole discretion, if you have created an Account and you submit your customer support questions using your Account.
18. NOTICES AND CONTACT INFORMATION
You authorize CALISTHENICS.COM to send notices (including notice of subpoenas or other legal process, if any) via electronic mail to the email address that we have on record for you. You must check the Service for notices, and you will be considered to have received a notice when it is made available to you by posting on the Service or when sent by CALISTHENICS.COM via electronic mail, whether or not received by you. CALISTHENICS.COM may provide notice to any email or other address that you provide to us. You must keep your address current and any notice sent by CALISTHENICS.COM to the address that you have most recently provided is effective notice. With the exception of notices related to removal of licensed material and to copyright infringement as described in Section 5 “Ownership of Rights; License Rights; User Submissions,” and Section 16 “Copyright Infringement / DMCA,” above, respectively, you must send us any notice by mailing it to our address for Legal Notices or by email at firstname.lastname@example.org.
19. LEGAL NOTICES
A. NOTICE OF AVAILABILITY OF FILTERING SOFTWARE
All users are hereby informed by the provider of this interactive computer service 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. A report detailing some of those protections can be found at http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Children’s Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).
B. NOTICE: NO HARVESTING OR DICTIONARY ATTACKS ALLOWED
YOU MAY VIOLATE FEDERAL LAW IF YOU: (i) INITIATE THE TRANSMISSION TO CALISTHENICS.COM COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. “CAN-SPAM ACT OF 2003”) THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (ii) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
C. NOTICE RE TRADEMARKS
The trademarks CALISTHENICS.COM, CALISTHENICS.COM and all other trademarks used in the Service are owned or used under license by CALISTHENICS.COM calisthenics.com is a trademark of Andy Toth in the United States and other countries. The names of third parties and their products mentioned may be their trademarks. You may not use any of the above or other trademarks displayed on the Service or in any CALISTHENICS.COM Content. All rights are reserved.
20. FEES; PAYMENTS
A. Fees. CALISTHENICS.COM reserves the right at any time to charge fees for access to the Service, or any portion thereof. However, in no event will you be charged for access to the Service unless we obtain your prior agreement to pay such charges. You may cancel your Account at any time. You agree to pay all charges that may be incurred by you or on your behalf through the Service, at the price(s) in effect when such charges are incurred. In addition, you remain responsible for any and all taxes that may be applicable to your purchase(s), and you agree that such taxes, if any, are not our responsibility.
C. Changes. We reserve the right, with or without prior notice, to: change descriptions or references to products, subscriptions, software or services; limit the available quantity of any products, subscriptions, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any user of the Service with any products, subscriptions, software or services. We may modify any points, rewards, or the terms that govern their usage, at our sole discretion, and such modifications may make the points or rewards more or less common, valuable, effective, or functional.
21. SUBSCRIPTION PROGRAM TERMS
CALISTHENICS.COM may offer certain programs as part of the Service which require a subscription (“Subscription Program”). If you participate in a Subscription Program, the following terms apply (the “Subscription Program Terms”), and are governed by the Terms, which are incorporated herein by reference. In the event of a conflict between these Subscription Program Terms and the Terms, these Subscription Program Terms will control.
You must be at least eighteen (18) years old to purchase a subscription to the Subscription Program, which is intended for adults age eighteen (18) and over. If you are a parent or guardian purchasing a subscription to the Subscription Program for use by your thirteen (13) to seventeen (17)-year-old child (together, and as applicable, “you”), you acknowledge that the Content may not be appropriate for all age groups, and agree to supervise and assume responsibility for all such use by your child. If we accept you in the Subscription Program, you may privately view the Content made available to you through the Service on your device for your own personal non-commercial purposes. You may not copy, store, modify, download, distribute or create derivative works from the Content. Any login credentials made available to you, or utilized by you, in connection with the Subscription Program must be kept confidential, and may not be shared, sold or otherwise distributed to any other person or entity.
B. REGISTRATION AND FREE TRIAL PERIOD (If Applicable).
Your participation in the Subscription Program will commence on the day of your successful registration. If you register pursuant to one of our free trial offers (each such offer, part of the Service), you may cancel at any time without charge during the free trial period described in such offer (“Free Trial Period”) by following the instructions applicable to the Subscription Program displayed via the Service. If you have not submitted a valid cancellation during such Free Trial Period, we will begin to charge your credit card or alternate payment method accepted by us (“Your Payment Method”) the subscription rate described in the Service upon expiration of the Free Trial Period. If you do not register pursuant to one of our free trial offers, we will begin to charge Your Payment Method the subscription rate described in the Service upon your successful registration. The “Initial Term” is the initial term applicable to your subscription described in the Service, following expiration of any Free Trial Period, if any. You may not participate in more than one (1) Free Trial Period.
C. RATES AND PROMOTIONS.
When you purchase a subscription to the Subscription Program, you initially will be charged the rate applicable at the time of purchase, which rate will be displayed via the Service. If we subsequently increase the rate, we will notify you via the contact information you provided through the Service. You are responsible for ensuring via the Service that your billing and contact information is accurate and up-to-date. The increased rate will apply to the next payment due from you after the notice, provided that you have been given at least ten (10) days prior notice before the charge is made. If you are given less than ten (10) days prior notice, the rate increase will not apply until the payment after the next payment is due. We may also require you to follow additional rules, guidelines or other conditions in order to participate in certain promotions or activities available through the Subscription Program, to obtain certain premium Content, or for other reasons. These additional terms will be made available through the Service and are part of these Subscription Program Terms, and you agree to comply with them when you participate in those promotions, or otherwise engage in activities governed by such additional terms. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members (“Credits”). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion.
D. AUTOMATIC RENEWAL.
Your subscription to the Subscription Program will continue until terminated by you or us. YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOLLOWING THE INITIAL TERM FOR ROLLING PERIODS EQUIVALENT TO THE INITIAL TERM (each such period, a “RENEWAL TERM”), AND YOUR PAYMENT METHOD WILL BE CHARGED THE APPLICABLE SUBSCRIPTION RATE IN ADVANCE, ON THE FIRST DAY OF EACH ROLLING RENEWAL TERM FOLLOWING EXPIRATION OF THE INITIAL TERM OR ANY PREVIOUS RENEWAL TERM. IF YOU DO NOT DESIRE TO HAVE YOUR SUBSCRIPTION AUTOMATICALLY RENEWED, YOU MUST TERMINATE YOUR SUBSCRIPTION AS SET FORTH IN SECTION E BELOW.
You may terminate your subscription for any reason by following the instructions applicable to the Subscription Program displayed via the Service; however, there are no refunds or credits for partially used periods. Your valid termination notice will take effect at the end of the current rolling Renewal Term in which such notice was provided to us, provided you follow the Service instructions regarding termination. For clarity, correspondence with our customer support team will not constitute a valid termination notice from you. We may, in our sole discretion, terminate, suspend or modify the Subscription Program or any feature thereof, or your access thereto, at any time, with or without notice, and without refunds, credits or reimbursements.
WE ASSUME NO RESPONSIBILITY FOR NOR MAKE ANY WARRANTY NOR REPRESENTATION AS TO: (i) THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THE SUBSCRIPTION PROGRAM, SERVICE OR CONTENT (INCLUDING DESCRIPTIONS THEREOF) DISTRIBUTED OR MADE AVAILABLE THROUGH OR OUTSIDE THE SERVICE; OR (ii) ANY RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION PROGRAM, SERVICE OR CONTENT. By participating in the Subscription Program, you understand that exercise involves strenuous physical movement, and that such activity carries the risk of injury, whether physical or mental. You understand that it is your responsibility to judge your physical and mental capabilities for such activities. It is also your responsibility to ensure that, by participating in the Subscription Program, you will observe and not exceed any mental or physical conditions and/or limitations you have (including dietary restrictions or requirements).
22. MOBILE SERVICES AND APPLICATIONS
A. “Mobile Services” means certain software and services that are available via a mobile device, including: (i) the ability to upload data to the Service via a mobile device; (ii) the ability to use the Service from a mobile device; and (iii) the ability to access certain features through a Mobile Application downloaded and installed on a mobile device.
B. Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
C. Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding CALISTHENICS.COM and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your CALISTHENICS.COM Account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your CALISTHENICS.COM Account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
D. Application. Subject to your compliance with these Terms, CALISTHENICS.COM grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the CALISTHENICS.COM Mobile Application on a mobile device that you own or control and to run such copy of the Mobile Application solely to access the Mobile Services for your own personal non-commercial purposes. Furthermore, with respect to any Mobile Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
E. App Stores. You acknowledge and agree that the availability of the Mobile Application and the Mobile Services is dependent on the third party from whom you received the Mobile Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that these Terms are between you and CALISTHENICS.COM and not with the App Store. CALISTHENICS.COM, not the App Store, is solely responsible for the Mobile Application and the Mobile Services, the Content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Mobile Application and the Mobile Services. You agree to comply with, and your license to use the Mobile Application and the Mobile Services is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Mobile Application and the Mobile Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
F. Accessing and Downloading the Mobile Application from the Apple App Store. The following applies to any Mobile Application accessed through or downloaded from the Apple App Store:
i. You acknowledge and agree that: (i) these Terms are concluded between you and CALISTHENICS.COM only, and not Apple; and (ii) CALISTHENICS.COM, not Apple, is solely responsible for the App Store Sourced Application and Content thereof. Your use of the App Store Sourced Application must comply with the Apple App Store terms of service.
ii. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
iii. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between CALISTHENICS.COM and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of CALISTHENICS.COM.
iv. You and CALISTHENICS.COM acknowledge that, as between CALISTHENICS.COM and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
v. You and CALISTHENICS.COM acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between CALISTHENICS.COM and Apple, CALISTHENICS.COM, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
vi. You and CALISTHENICS.COM acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and the conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
vii. Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
24. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
25. USERS FROM OTHER JURISDICTIONS
By accessing or using the Service, or submitting information (including User Content), you acknowledge that you accept the practices and policies outlined in this Agreement and consent to having your data transferred to and processed in the United States. If you do not agree to these Terms, please do not use the Service. The Service is controlled and operated by CALISTHENICS.COM from the United States. We do not represent or warrant that the Service, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Service, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Service and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Service, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
26. ADDITIONAL TERMS
A. Agreement to Conduct Transactions Electronically. All of your transactions with or through the Service may, at our option, be conducted electronically from start to finish. If we decide to proceed non-electronically, those services will still be governed by the remainder of these Terms unless you enter into different terms on a form provided by us. If the Applicable Law allows you to withdraw your consent to conducting transactions electronically, or if we are ever required to deal with you non-electronically, we reserve the right to charge or increase fees and you agree to print or make an electronic copy of these Terms and any other contract or disclosure that we are required to provide to you.
B. No Agency. These Terms do not create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship.
C. Severance. If any part of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full effect, provided that the allocation of risks described in these Terms is given effect to the fullest extent possible.
D. Assignment. These Terms are personal to you and you may not transfer, assign or delegate them to anyone without the express written permission of CALISTHENICS.COM. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of CALISTHENICS.COM will be null and void. CALISTHENICS.COM has the right to transfer, assign and delegate these Terms to one (1) or more third parties without your permission.
E. Export Limitations. The Service is controlled by us from our offices in the United States of America and is directed to U.S. users. If you access the Service from locations outside the U.S., you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Service in violation of U.S. export laws and regulations or the Terms.
F. Arbitration. All disputes arising out of these Terms (including the formation, performance or alleged breach) or your use of the Service will be exclusively resolved under confidential binding arbitration. If you can demonstrate that arbitration in California would create an undue burden to you, you are free to initiate the arbitration in your home state. Otherwise, the arbitration hearings will be held in Los Angeles County, California before and in accordance with the Rules of the American Arbitration Association. You may download or copy a form notice at www.adr.org. If you initiate arbitration, your arbitration fees will be limited to the filing fees. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by Applicable Law, no arbitration under these Terms will be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, we will have the right to seek injunctive or other equitable relief in the state or federal court in Los Angeles County, California to enforce these Terms or prevent infringement of a third party’s rights. In the event equitable relief is sought, each party irrevocably submits to the personal jurisdiction of such court.
G. Waiver of Class Action Rights. By agreeing to these Terms, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claims arising out of, relating to, or connected with these Terms must be individually asserted.
H. Limitations on Actions. Any action concerning any dispute with respect to the Service must be commenced within one (1) year after the cause of the dispute arises, or the cause of action is barred.
I. Interpretation. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect. As used in these Terms, the words “include” and “including” are meant to be illustrative and not exhaustive.
J. Entire Agreement. These Terms and any policies and guidelines posted to the Service by CALISTHENICS.COM comprise the entire agreement (the “Entire Agreement”) between you and CALISTHENICS.COM with respect to your use of the Service and supersede all contemporaneous and prior agreements between the parties regarding the subject matter contained herein, and neither party has relied on any representations made by the other that are not expressly set forth in the Entire Agreement.
K. No Waiver. The failure of any party to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or that party’s right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records.
27. FURTHER INFORMATION
If you have a complaint, you may contact us at CALISTHENICS.COM’s Legal Department:
285 Main St.
San Francisco, CA
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