Terms of Use

The Service is an online portal that connects fitness consumers, providers and facilities. You must be of the age of majority in your jurisdiction in order to use the Service. Except as otherwise provided in the Terms of Use, Promoga grants you a revocable, non-exclusive, non-transferrable subscription to use the Service as permitted herein (the “Subscription”). You acknowledge and agree that no title or ownership interest in the Service or Subscription is transferred or assigned to you and that the Terms of Use is not a sale of any right to the Service or Subscription.

The Subscription may require you to register an Account to access, or use certain features of, the Service. Creating an Account requires you to select a user name and password (“Login Information”). You are solely responsible for keeping Login Information confidential and agree to be bound by any use of your Login Information, including purchases, whether or not you authorized such use. If you become aware of, or reasonably suspect, an unauthorized use of your Subscription or Account, you must immediately change the password that is part of your Login Information. Any questions concerning unauthorized use may be emailed to Promoga at [email protected].

Registering or using a Subscription or Account(s) requires you to provide Promoga with personal information that is collected and used in accordance with Promoga’s Privacy Policy. You agree to provide accurate and complete personal information to Promoga and to update your information if it changes. The Privacy Policy is available at www.promoga.com/privacy-policy.

The Service allows you to purchase fitness activity passes (each, a “Fitness Pass”) from fitness providers through the Service (each, a “Fitness Provider”). You may only use a Fitness Pass for the number of activity sessions, with the particular Fitness Provider for which it was purchased, until the expiration date set by the Fitness Provider, and thereafter the pass expires. Notwithstanding the foregoing, each Fitness Pass expires upon the earliest of:

• (a) your failure to agree to or pay any Additional Fees or Additional Terms (as each is defined below);
• (b) a Fitness Provider ceasing to operate in such capacity; or
• (c) termination of your Subscription or a Fitness Provider’s Subscription by Promoga.

You are not entitled to a refund of any kind upon expiration of a Fitness Pass. A Fitness Pass may be transferred or gifted to a third party and who is required to create an Account on the Service in order to access and use such Fitness Pass.

If you wish to purchase a Fitness Pass, you may be asked to provide certain information relevant to your purchase including, without limitation, your first and last name, credit card information, billing address and an email address (“Payment Information”). By purchasing a Fitness Pass you acknowledge and agree that Promoga may provide Payment Information to third parties for processing purposes and that such third parties may collect, use and disclose your Payment Information pursuant to such third parties’ privacy terms. It is your obligation to review and determine the acceptability of such third party privacy and other service terms.

You may cancel any Fitness Pass you purchase up to 48 hours after purchase or up to 48 hours prior to the first Fitness Pass activity commencing, whichever occurs first, through the cancellation feature located within your Account on the Service (the “Cancellation Period”). Notwithstanding the foregoing, if your Fitness Pass was free, you may cancel up to 24 hours prior to the related activity commencing. Following the Cancellation Period, you are not entitled to a refund of any kind.

As a Fitness Provider, you agree to accurately describe the fitness activities you offer including, but not limited to, the type, duration, content, facilities and location of such fitness activities and shall update any information promptly upon any change occurring. Additionally, your represent and warrant that any information you provide about yourself as a Fitness Provider including, but not limited to, personal information, qualifications and certifications and insurance coverage is accurate and agree to update any information promptly upon any change occurring. Any personal information you provide is collected, used and disclosed consistent with the Privacy Policy.

It is the Fitness Provider’s sole responsibility to calculate, collect and remit any applicable taxes relating to Fitness Passes or any other products or services it sells through the Service. As a Fitness Provider, you shall indemnify, defend and hold Promoga harmless from any liability for, or assessment of, any claims or penalties with respect to such taxes, including any liability for, or assessment of, withholding taxes imposed on Promoga by the relevant taxing authorities with respect to any Proceeds paid to you.

Promoga retains all right, title and interest in the Service including, without limitation, all copyrights, patents, trademarks, trade secrets, industrial designs, utility models and any other rights recognized pursuant to the laws of any country or jurisdiction, whether or not protected by law. Promoga hereby retains all rights not expressly granted in the Terms of Use.

User content includes any data or content that you or other users create, enter, submit, upload or transfer using the Service or in conjunction with Third Party Technology (“User Content”). By providing User Content you represent and warrant that you have all consents, licenses and rights necessary to provide and license the User Content and you hereby grant Promoga an irrevocable, fully-paid, royalty-free, non-exclusive, perpetual, worldwide license to User Content under all copyright, trademark, trade secret, patent, privacy and publicity rights and any other intellectual or industrial property rights you own or control to use, broadcast, disclose, display, distribute, modify, make derivative works of, publicly perform, publish, record, reproduce, sublicense (on multiple levels), translate, transmit or otherwise exploit for all purposes and in all formats and mediums now known or hereafter developed and for all purposes without attribution, notice, permission or payment to you or any third party.

Fitness providers and facilities are third parties and Promoga is not an agent or otherwise connected with fitness providers or facilities other than by providing a service that connects fitness consumers, providers and facilities. You agree that Promoga shall not be liable to you for any loss or damage of any kind arising out of or relating to the terms of use or use of the service, third party technology or facilities, amenities, equipment, products, waivers or services provided by fitness providers or other third parties and including, without limitation, special, indirect, consequential, incidental, punitive or exemplary damages, loss of data, loss of content, loss of profits, loss of any contract, loss of goodwill and any and all other damages or losses, even if Promoga has been advised of the possibility of such loss or damage. You agree to indemnify, defend and hold Promoga, its directors, officers, employees, agents, contractors and partners, harmless from and against any claim, liability, injury, damage, cost, loss or expense that arises from your, or any third party’s, use of the service or facilities, amenities, equipment, products, waivers or services provided by fitness providers or other third parties. This limitation applies to any cause of action or claims in the aggregate, whether in an equitable, legal or common law action arising hereunder and including, without limitation, breach of contract, breach of warranty or indemnity, misrepresentation, negligence, strict liability and other torts. Without limiting the foregoing, you agree that Promoga’s maximum aggregate liability to you in any case whatsoever will be the lesser of: (1) the amount you paid to Promoga in the 12 months immediately preceding the date of the harm in question; and (2) $100 (CAD). Please note that some jurisdictions do not allow the limitation or exclusion of liability or incidental or consequential damages such that certain exclusions above may not apply to you.

Promoga shall promptly provide you written notice of the claim against Promoga and, at your expense, give all reasonable assistance. You may not settle any claim unless it unconditionally releases Promoga of all liability.

Nothing in the Terms of Use shall be construed to create any partnership, joint venture, employer-employee or agency relationship between you and Promoga. Promoga is not an agent or otherwise connected with Fitness Providers other than by providing a Service that connects fitness consumers, Fitness Providers and facilities.

The Terms of Use are governed by and construed under the laws of the province of British Columbia. You agree that any claim or dispute be resolved by courts located in Vancouver, British Columbia and hereby submit to the personal jurisdiction of such courts.

To the extent any section, clause, provision or sentence or part thereof of the Terms of Use is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction, then that portion will be severed and the remainder of the Terms of Use given full force and effect.

Promoga’s failure to assert or enforce any right contained in the Terms of Use does not constitute a waiver of that right.

You agree that any claim arising out of or relating to these Terms of Use or the Service must commence within one (1) year following the date the cause of action accrues and, thereafter, such claim is permanently barred.

The Terms of Use constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements, communications, representations or undertakings provided to you. To the extent the Terms of Use conflict with the provisions of the Privacy Policy, the conflicting provisions in the Privacy Policy govern.