StrengthEngine.com Advanced Trainer Pro User Terms and Conditions of Use
Version 1.0 October 10, 2020
Welcome to the StrengthEngine.com Advanced Trainer Pro ("ATP") Trainer Program. The ATP Trainer Program allows personal fitness trainers to use the ATP tool to create and provide customized fitness training programs for their clients (in other words, to provide the "ATP Service" to your clients). The ATP Trainer Program is provided by StrengthEngine, Inc. ("StrengthEngine"), subject to these StrengthEngine.com Advanced Trainer Pro Trainer Program Terms and Conditions of Use ("Terms"). By clicking "I Agree" below, you represent that you have read and agree to be bound by these Terms. You may print out a copy of these Terms for your records.
1. Representations and Warranties
You represent and warrant that:
a. you are over the age of 18 and can form a legally binding contract under applicable law;
b. you have provided and will continue to provide only true, accurate, current and complete information about yourself and your clients when providing information to StrengthEngine and the e-mail account you provide to StrengthEngine is registered to you and shall remain active at all times while you use the ATP Trainer Program.
c. you are not using the ATP Trainer Program for any improper purpose, and you will act in good faith in your relationship with StrengthEngine;
d. you have or your employer has and will maintain sufficient liability insurance to fully indemnify StrengthEngine as required in Section 8 of these Terms.
e. you understand and agree that the ATP Service may not be used as a substitute for professional or medical advice;
f. you understand that health information changes rapidly, and some information provided by the ATP may be out of date, and you agree that it is your responsibility to design the fitness training program to reflect current health information;
g. you understand and agree that we may at any time solicit others to participate in the ATP Trainer Program on terms that may differ from those contained in these Terms;
h. you have independently evaluated the desirability of participating in the ATP Trainer Program and are not relying on any representation, guarantee, or statement other than those set forth in these Terms.
2. Trainer Conduct
Upon registration and your agreement to these Terms, StrengthEngine will provide you with an account and password, which will allow you to use the ATP tool (subject to systems availability) to provide the ATP Service to assist your clients. You are entirely responsible for maintaining the confidentiality of your password and account, and are solely responsible for all activities that occur under that account or by means of your password. You may change your password though an online account maintenance page. You agree to immediately notify StrengthEngine if you discover any unauthorized use of your account or password or any other breach of security.
You understand and agree that you are responsible for all training programs or other content you create or transmit via the ATP or the ATP Service ("Content"), whether or not you modify the training programs provided by the ATP. Thus, before you provide a client with the training program created by the ATP without modification, you must review the proposed program carefully and determine that no modification is necessary.
You agree that you will not use the ATP or the ATP Trainer Program in any way to:
a. transmit any Content that is harassing, unlawful, defamatory, abusive, threatening, obscene, harmful, tortious, invasive of another's privacy or right of publicity, or that infringes any copyright, trademark, trade secret, patent or other proprietary right, or that is otherwise objectionable;
b. violate any local, state, national or international law or regulation or transmit any Content that you do not have the right to disseminate under law, or contractual or fiduciary relationships;
c. interfere with, disrupt or harm in any way the ATP or servers or networks connected to the ATP;
d. provide or purport to provide medical advice or promote the ATP Service or any training programs created using the ATP as a substitute for medical advice;
e. provide fitness training programs that are not appropriate for your client's fitness or health needs or that cannot be performed safely by your client;
f. harm minors in any way or provide the ATP Service to minors;
g. transmit computer viruses or other harmful, disruptive or destructive files, codes or programs;
h. collect or store personal data about your clients or other users for any improper purpose, including without limitation sending unsolicited commercial e-mail messages;
3. Your Clients
You agree to charge each of your ATP clients the ATP Service Payment, in 3 month service increments, for as long as the clients use the ATP Service. For each sale of the ATP Service, StrengthEngine may provide a commission, as described below.
a. ATP Service Payment. You represent and warrant that client authorizers you to input an order for the ATP Service and have StrengthEngine charge their credit card for the amount indicated. StrengthEngine may accept payment via Visa or MasterCard.
b. Orders. Orders for the ATP Service are not binding until the order is accepted by StrengthEngine. StrengthEngine may need to verify any information you provide before StrengthEngine accepts an order, and may cancel or limit an order any time after it has been placed. StrengthEngine expressly conditions its acceptance of orders on your agreement to these Terms.
c. Qualifications. Your represent and warrant that all clients for whom you create fitness programs through the your participation in the ATP Trainer Program are over the age of 18 and have the physical and mental ability to safely complete the training programs, and that you will supervise and monitor their progress to ensure safe use of the ATP Service. If, at any point, it appears that your client cannot complete a training program safely, you agree to instruct the client to abort the program immediately and consult with a physician.
d. Agreement to User Terms. You understand and agree that each client must agree to the ATP User Terms and Conditions of Use before using the ATP, or any training programs provided through the ATP or the ATP Service.
e. Commissions. For each completed sale of the ATP Service, StrengthEngine will charge your client the ATP Service Payment, deduct its then current fee [provide link to fee schedule], and credit the difference to your commission, provided that credits will only be made for sales for which the ATP Service Payments are actually collected. You agree that , in the event that an ATP Service Payment charge is later contested or refunded, StrengthEngine may deduct the entire contested or refunded amount from any unpaid commission credits. StrengthEngine will make commercially reasonable efforts to pay commissions to you on a monthly basis, on a date determined by StrengthEngine.
4. Intellectual Property
All materials available through the ATP or the ATP Service, including without limitation, design, text, graphics or other files, and the selection and arrangement thereof are protected by copyright, trademark and other intellectual property rights of StrengthEngine or others. You agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in your Content, in any media now known or not currently known, for the purpose of offering our services.
a. Copyright. You may electronically copy and print to hard copy your client's fitness program from the ATP or an e-mail, for the sole purpose of using such materials for use in conjunction with the ATP. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
b. Trademarks. StrengthEngine, the ATP logo, and the product names and service names available through the ATP Service are either trademarks or registered trademarks of StrengthEngine and its licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of StrengthEngine. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of StrengthEngine, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of StrengthEngine.
5. No Agency
No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms. StrengthEngine will not withhold or pay any taxes on your behalf, and you agree that it is your sole responsibility to pay any taxes related to or arising out of your resale of the ATP Service or otherwise arising from your use of the ATP Trainer Program.
6. NO WARRANTY
THE ATP TRAINER PROGRAM, THE ATP AND THE ATP SERVICE ARE PROVIDED TO YOU ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. STRENGTHENGINE.COM, L.L.C. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. STRENGTHENGINE.COM, L.L.C. DOES NOT WARRANT THAT MATERIALS OFFERED ON OR THROUGH THE ATP TRAINER PROGRAM, THE ATP OR THE ATP SERVICE ARE ACCURATE, COMPLETE, RELIABLE, SAFE, OR WILL ACHIEVE YOUR CLIENT'S FITNESS GOALS OR THAT YOUR USE OF THE ATP TRAINER PROGRAM, THE ATP OR THE ATP SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE ATP OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DESTRUCTIVE FILES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE ATP TRAINER PROGRAM, THE ATP AND THE ATP SERVICE IS AT YOUR AND/OR YOR CLIENT'S RISK.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL STRENGTHENGINE.COM, L.L.C. BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE ATP TRAINER PROGRAM, THE ATP OR THE ATP SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FROM LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF STRENGTHENGINE.COM, L.L.C. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL STRENGTHENGINE.COM, L.L.C.'S LIABILITY EXCEED THE AMOUNT OF MONEY COLLECTED FOR THE ATP SERVICES PROVIDED TO YOUR CLIENTS FOR THE YEAR PROCEEDING YOUR ALLEGED INJURY.
Some jurisdictions do not allow the limitation of liability or exclusions of certain warranties or liability, so some of the above limitations may not apply to you.
You agree to indemnify and hold harmless StrengthEngine, its parents, subsidiaries, affiliates, officers, directors, agents, employees, co-branders or other partners, and suppliers, from any claim, demand, action or damage, including reasonable attorney's fees, made or incurred by any third party arising out of or related to your use of the ATP Trainer Program, the ATP, any Content you transmit via the ATP, or your violation of these Terms.
9. Choice of Law and Forum
The Terms shall be governed by the laws of the State of California, without giving effect to its conflict of laws provisions. Any claim or controversy arising in any way out of or relating to the Terms, the ATP Trainer Program, the ATP or the ATP Service shall be filed within one year of the date of the injury, regardless of any statute of limitations, in a court of competent jurisdiction sitting in Santa Clara County, California.
You agree that StrengthEngine, in its sole discretion, at any time and without cause, may terminate your use of the ATP Trainer Program, including without limitation, your password and account, effective upon notice to you. If StrengthEngine determines, in its sole discretion, that you have violated the Terms, it may terminate your use of the ATP Trainer Program immediately, without notice to you. You may terminate your use of the ATP Trainer program by providing notice to StrengthEngine pursuant to Section 11.
Upon termination, StrengthEngine may remove or delete any Content on the ATP Service or within your account, including Content you have provided to StrengthEngine or transmitted through the ATP Service. In addition, you must advise your clients that their ATP Service has been terminated.
You further agree that StrengthEngine shall not be liable for any termination of your use
of or access to the ATP Trainer Program. Sections 4, 5, 6, 7, 8, 9, 10 and 11 of these Terms and Conditions of Use will survive termination of these Terms.
These terms constitute the entire agreement between you and StrengthEngine governing your use of the ATP Trainer Program and the ATP. Notice to StrengthEngine shall be given by postal mail to StrengthEngine.com, L.L.C., 5455 North Kolb Road, Tucson, Arizona 85750 and notice to you may be given by an e-mail sent to the address you provided to StrengthEngine at registration or by a general notice posted on the ATP Web site. E-mail notice shall be deemed given 24 hours after the e-mail is sent.
If any provision of these Terms shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of these Terms shall not be affected, shall remain in full force and effect and are to be construed and interpreted so as to achieve so far as possible the same effect without rendering the remainder of the Terms illegal, void or unenforceable.