Cr8 Health and Fitness LLC
Last modified: 2017-12-12
Effective date: 2017-12-12
software, whether accessed: (a) on a computer connected to the internet at
http://GetFitNH.com (the “Website”); (b) on Cr8 Health and Fitness LLC social
media properties; or (c) by mobile device (individually and collectively, (a), (b), and (c)
are the “Product”), as owned and operated by Cr8 Health and Fitness LLC (“Trainer
”), a NH corporation having its registered address at 167 New Orchard Rd. Epsom NH
03234 (referred to in these Terms as “we”, “us” or the “Trainer/Company”). These
Terms govern the use of all persons using the Product, including without limitation, the
account manager or organization who registers an account on the Product (the “
Account Manager”), all additional managers, teachers and parents (collectively, along
with the Account Manager, “You” or the “User”), who have registered for the use of the
Product, and are binding on any use of the Product, and apply to You from the time
that You access the Product. For clarification, “You” includes terms such as “your” and
2. APPROVAL OF THE TERMS
It is important that You read these Terms carefully. If You do not agree to these Terms,
please do not use the Product or browse the Website. By accessing or using the
Product, You represent, warrant and signify that: (a) You are at least 18 years of age;
(b) You have read, understood and agree to be bound by these Terms as they may be
You may not use the Product nor accept these Terms if you are not of a legal age to
form a binding contract with us. If You accept these Terms, You represent that You
have the capacity to be bound by them, or if You are acting on behalf of a company or
entity, that You have the authority to bind such company or entity (and in which case “
You” will refer to the company or entity).
We may add to, discontinue or revise these Terms or any aspect, mode, design, or
service provided under the Product, which include but are not limited to the:
a. scope of the features;
b. timing of the features;
c. software/hardware required for access to the Product; and
d. geographic locations or jurisdictions in which certain features may be available.
We may amend the Terms without notice for non-material amendments. In the event of
a material change, we will provide the Account Manager with thirty (30) days’ notice of
a material change in the Terms and conditions (including changes in pricing) via e-mail
to the e-mail address supplied to us by the Account Manager, setting out:
a. the new or amended agreement terms;
b. how such terms read formerly;
c. the date of the coming into force of the amendment;
d. the means in which You can respond and the effects of not responding;
e. the option to either terminate the agreement or retain the existing agreement
f. the language of this provision with reference to the applicable consumer
protection legislation rules for amending these terms and making any additional
requirements for amendments as prescribed by law (if any).
It is the Account Manager’s responsibility to send such notices of material changes to
all Users associated with the Account Manager’s account. We highly recommend that
Users read any amendments carefully. Unless explicit consent is required by the law,
we have the right to assume that You have accepted the change to the terms and
conditions, unless You notify us to the contrary, no later than thirty (30) days after the
amendment comes into force, that You desire to cancel the contract or deregister or
unsubscribe from access to the Product.
We will post the most current Terms on the Website and your use of the Product will be
subject to the most current Terms as posted on the Website at such time. It is your
responsibility to visit this page to find any updates that may have been made to the
Terms. You hereby agree that Cr8 Health and Fitness LLC shall not be liable to You,
4. PAYMENT TERMS
Payment from Account Managers will be due upon delivery of an electronic invoice
from Cr8 Health and Fitness LLC to the Account Manager monthly, as applicable.
Any amounts payable by the Account Manager hereunder which remain unpaid thirty
(30) after an invoice is delivered shall bear interest at the rate of two percent (2%) per
month (up to a maximum of twenty four percent (24%) per annum), or the maximum
amount allowable by law, such interest to be calculated on a daily basis from the date
the payment becomes overdue until the date payment is made in full.
Account Managers may be required to provide account information for at least one
valid debit or credit card through the Product (“Debit or Credit Card Information”). We
will use this Debit or Credit Card Information in accordance with this Agreement and
We are not liable for any payments that are not completed because: (1) your debit or
credit card account does not contain sufficient funds to complete the transactions or the
transactions would exceed the credit limit or overdraft protection of the debit or credit
card account; (2) You have not provided us with correct payment account information;
(3) your debit or credit card has expired; or (4) of circumstances beyond our control
(such as but not limited to, power outages, interruptions of cellular service, overzealous
fraud protection rules applied by your payment card brand or acquirer bank, or any
other interface from an outside force).
All payment is exclusive of any taxes or duties imposed by jurisdiction tax law. Trainer
will not be responsible for any taxes or duties owed by You.
These Terms are effective on the date that You access the Product and will continue to
apply until our relationship with You is terminated. Users may terminate their
relationship with us by notifying Trainer via email at firstname.lastname@example.org The services
provided by the Product and the applicable fees shall continue until the end of the
Account Manager’s current subscription term after the Account Manager has notified us
of your desire to unsubscribe from the Product, to close your account, and to cease
your use of the Product. Account Managers that use the Product during a trial period
and do not register for the Product after the free trial period will have their account
terminated at the end of the free trial period.
We may terminate our relationship with You immediately at any time and for any
reason including, but not limited to, a breach of these Terms under the following
a. if You have not adhered to any or all the provisions of the Terms (such as a
failure to pay fees when due) or if it appears that You do not intend to or are
unable to comply with the Terms, such determination to be made solely at our
required consent, subject to the amendment provision in this Agreement;
c. if we are required to terminate the relationship by law;
d. if we receive any notice of your misuse of the Product; or
e. if provision of the Product is no longer commercially viable for us.
Upon termination of our relationship, we will immediately revoke your license to use the
Product and block all access to your account, and may delete all data and information
associated with your account thirty (30) days after such termination. Upon termination
of this relationship, You will remain liable for any accrued charges and amounts which
become due for payment prior to or following termination. If you do not log into your
account for twelve (12) or more months, we may treat your account as “inactive” and
permanently cancel your account upon delivery of written notice and delete your
information thirty (30) days after such notice has been delivered.
6. USE OF THE PRODUCT
In order to use the Product, an Account Manager must register using our registration
page located at http://GetFitNH.com. You understand and agree that an employer of
your organization may register You for a manager account. Upon registration, the
Account Manager may setup additional accounts on the registered account for others.
Registration Information: You agree and understand that You are responsible for
maintaining the confidentiality of your password, which, together with your name and email
address (“User ID”), allows You to access the Product. The User ID and
password, together with any other contact information You provide us at the time of
signing up for the Product form your “Registration Information.” You agree that all
Registration Information provided to us will be accurate and up-to-date. You agree to
keep your password secure. We will not be liable if we are unable to retrieve or reset a
lost password. If You become aware of any unauthorized use of your password or
account, You agree to notify us via e-mail at email@example.com as soon as possible.
Accounts: You may create or use additional accounts for the purpose of logging into
the secured account as a manager, teacher and/or parent, as applicable to your role in
the managed account. You may not open an account if you are a competitor of Trainer.
Permitted Uses: You agree to use the Product only for purposes that are permitted,
both by the Terms and by any applicable law, regulation, or generally accepted
practices or guidelines, in relevant local, national, and international jurisdictions. You
agree to adhere to any applicable privacy of personal information laws and regulations,
including as outlined in the Personal Information Protection and Electronic Documents
Act, SC 2000, c 5.
Unauthorized Access: You agree to only access (or try to access) and use the
Product through interfaces provided by us. You shall not access (or try to access) and
use the Product through any automated means, including, but not limited to, scrapers,
scripts, robots, or web crawlers. You agree not to use or attempt to use another User’s
account. You agree not to impersonate any person or entity, or falsely state or
otherwise misrepresent yourself, your personal information, or your affiliations with any
person or entity.
Prohibited Uses: You may use our Website, services, and products only for lawful
purposes. You may not use our Website, services, or products in any manner that:
a. breaches any applicable local, national or international law or regulation;
b. may in any way be considered harassment to another person or entity;
c. may in any way, is unlawful or fraudulent, or has any unlawful or fraudulent
purpose or effect;
d. may in any way damage, disable, overburden, and/or impair the the Product
server, or any network connected to the Product server, and/or interfere with
any other party’s use or enjoyment of the Product;
e. is in any way abusive, defamatory, misleading, fraudulent, pornographic or
otherwise explicit in nature or written in bad faith;
f. harms or attempts to harm minors in any way;
g. will reproduce, duplicate, copy, sell, resell or exploit any portion of the Product;
h. will abuse either verbally, physically, written or other abuse (including threats of
abuse or retribution) of any Product customers, employees, members, or
officers; and any of the foregoing will result in immediate account termination.
You represent and warrant that You will not use the Product to upload, post, link to,
email, transmit, or otherwise make available any material that contains software viruses
or any other computer code, files or programs designed to interrupt, destroy, or limit the
functionality of any computer software or hardware or any telecommunications
equipment. Nor will You post or distribute any computer program that damages,
detrimentally interferes with, surreptitiously intercepts, or expropriates any system,
data, or personal information. You further represent and warrant that You will not
disrupt the functioning of the Website, in any manner.
Moderation: You understand and agree that although Trainer is not required to
moderate your use of the Product, it may in its sole judgment review and delete any
content in whole or in part, for any reason whatsoever, which without limitation, violate
these Terms or which might be offensive, illegal, or that might violate the rights, harm,
or threaten the safety of others.
User Responsibility: You agree that You are solely responsible for any breach of your
obligations under the Terms and for the consequences of any such breach. We have
no responsibility to you or to any third party for such breaches or the consequences of
such breaches (including losses or damage that we may incur).
You understand that when using the Product, You may come across material that You
find objectionable, offensive or indecent and agree that You are using the Product at
your own risk.
Technical Requirements: Use of the Product requires internet access through your
computer. You may be required to have [INSERT TECHNICAL REQUIREMENTS]
enabled to use the Product, and some features of the Product may not be accessible
with such technologies disabled.
If you would like to link to the Product, we request that you:
Inform us that you are creating a link by sending a message to
firstname.lastname@example.org. Please indicate the URL of the page where the link will be
Link to the Product home page instead of specific pages within the Product.
While Trainer encourages links to the Product, it does not wish to be linked to or from
any third-party website which contains, posts or transmits any unlawful information of
any kind, including, without limitation, any content i) that constitutes or encourages
conduct that would constitute a criminal offence, give rise to civil liability or otherwise
violate any local, state, provincial, national or international law or regulation; ii) that may
be damaging or detrimental to the activities, operations, credibility or integrity of the
Trainer; or iii) that contains, posts or transmits any information, software or other
material which violates or infringes upon the rights of others, including material which is
an invasion of privacy or publicity rights, or which is protected by copyright, trademark
or other proprietary rights.
The Trainer reserves the right to prohibit or refuse to accept any link to the Product,
including, without limitation, any link which contains or makes available any content or
information of the foregoing nature, at any time. You agree to remove any link you may
have to the Product upon the request of the Trainer.
The framing, mirroring of the Product or any of its content in any form and by any
method is strictly prohibited and deep linking is discouraged. You may not cause any
advertisement including any pop-up or banner advertisement to appear at, or on, or
after exiting, the Product.
Policy applies to the collection, use, disclosure, retention, protection and accuracy of
your personal information and business financial information collected for the purposes
of the features offered through the Product.
8. THIRD PARTY LINKS
The Product may link to third-party websites or resources. Such links are provided as a
convenience to You only and do not imply an endorsement, warranty or guarantee by
us of any such linked Website or the company it purports to represent. We do not
assume any responsibility or liability for their availability, accuracy, the related content,
products or services. You are solely responsible for use of any such websites or
resources and compliance with their policies. Should You elect to enter into a binding
contract with any such website, You agree to hold us harmless and hereby release us
from any liability whatsoever, whether arising out of contract, tort or otherwise, for any
liability, claim, injury, loss or damage suffered as a result of your actions or the actions
of any user associated with your account, offering to accept or having accepted any
products or services that are available from those sites.
9. INTELLECTUAL PROPERTY AND RIGHTS
Rights to content provided by us: You acknowledge and understand that we own all
right, title and interest in: (a) the Product and any associated data files; and (b) all
computer software; advertisements; sponsored content; and intellectual property
associated with the Product (all such information, individually and collectively, being the
“Product Content”), which You may have access to when using the Product.
Except as set forth in the Agreement, all rights not expressly granted to You are
reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate,
reverse engineer, or discover any of the intellectual property or ideas, algorithms, file
formats, programming, or interoperability interfaces underlying the Product. You may
not modify, rent, lease, loan, sell, distribute or create any derivative products or
services (or parts of services products or services) based on the Product Content that
You do not own or to which You have rights, or to create derivative works based on the
Product. You may not infringe upon our intellectual property or adapt, reproduce,
publish or distribute copies of any information or material found on the Product in any
form (including by e-mail or other electronic means), without our prior written consent.
You are not required to provide Trainer with any comments, suggestions,
recommendations, requests or any other feedback (“Feedback”). In the event that you
do provide Trainer with Feedback, Trainer may use such feedback to improve the
Product or for any other purpose. Furthermore, Trainer shall own such Feedback and
Trainer and its affiliates, licensees, clients, partners, third-party providers and other
authorized entitled may use, license, distribute, reproduce and commercialize the
Feedback, and You hereby assign, irrevocably, exclusively and on a royalty-free basis,
all such Feedback to Trainer.
Limited license: We grant You a non-exclusive, non-transferable, revocable, limited
license to use the Product in accordance with these Terms. This limited license is
subject to full payment of the monthly fees per child, when due. This license may be
revoked upon breach of these Terms by You and shall automatically be revoked upon
termination or expiration of this Agreement.
The Company may, now or in the future, own rights to trade-marks, trade names,
services marks, logos, domain names and other distinctive brand features which we
use in connection with the operation of the Product (each such feature being a “Brand
Right” and collectively being the “Brand Rights”). We do not grant you any right or
license to use any Brand Right other than as expressly set out in these Terms and in
other licenses between You and us.
Rights to content provided by you: Trainer does not retain any right, title and interest
to the information provided, inputted or uploaded to the Product (“User Data”). You
understand and agree that the ownership of User Data shall be decided amongst
yourself and your employer, if applicable, and that your User Data may be available to
your employer even after the termination of your account with the Product. You agree
that You will defend, indemnify and hold harmless us and our officers, directors,
shareholders, employees, agents and representatives, from and against any and all
claims, damages, judgments, liability, costs and expenses (including without limitation
any reasonable legal fees), in whole or in part arising out of or attributable to the
ownership of User Data.
You also understand that in order for us to operate the Product, User Data may be
transmitted by You or us over various public networks and in various media in
compliance with our security protocols and we may make changes to User Data to
meet the technological requirements of such networks and media. You are responsible
for ensuring that User Data is protected and your rights in User Data are enforced; we
have no responsibility to protect or enforce your rights on your behalf with respect to
At any time and up to thirty (30) days after your termination with Trainer, You may
request a copy of all of your User Data from the Product (“Data Dump”). You
understand and agree that after the expiration of thirty (30) days after your termination
with Trainer, your User Data will be permanently deleted and You will no longer have
access to such Data Dump.
The Product provided as-is: The Product is provided “as-is” without warranties of any
kind, either expressed or implied. You acknowledge, agree and understand that You
use the Product at your own risk. We will have no responsibility for any harm to your
computer system, loss or corruption of data, or other harm that results from your
access to or use of the Product.
Downtime: The Product may be temporarily unavailable from time to time for
maintenance or other reasons. We assume no responsibility for any error, inaccuracy,
omission, interruption, deletion, defect, delay in operation or transmission,
communications line failure, theft or destruction or unauthorized access to, or alteration
of, any communications between You and the Product.
No endorsement as to accuracy: We accept no responsibility for the accuracy of any
User Data provided by or created using the Product except as otherwise set out in
these Terms. The provision or storage of User Data through the Product does not
constitute our endorsement or warranty as to the compliance of such User Data with
applicable privacy legislation, nor to the accuracy, timeliness, materiality,
completeness, or reliability of such User Data. You are responsible for ensuring that
that the information you have entered into our system is accurate, reliable and
Ratings and reviews: We accept no responsibility or liability for any ratings or reviews
of an employee posted to the Product, or any consequences as a result of the ratings
or reviews of an employee, including but not limited to termination of an employee.
Ratings and reviews posted to the Product DO NOT reflect our views.
Monitoring: We do not accept any liability for monitoring the Website or for
unauthorized or unlawful content on the Website or use of the Website by users.
No warranty as to non-infringement: Except in the manner provided for in these
Terms, we disclaim, and expressly do not provide any direct or indirect, express or
implied representation or warranty as to title and non-infringement of intellectual
property in relation to the Product.
Damage to hardware: Any material downloaded or otherwise obtained through the
use of our services and products 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.
Content provided to companies: If You are an individual providing User Data that is
to be directed to your organization’s account, You agree and acknowledge that we
accept no responsibility and are not liable for any damages that may arise by the
organization’s use of that User Data. You further agree and acknowledge that we are
not liable for any damages that may arise if the User Data is misdirected to the wrong
organization due to any reason, including error on your part or a flaw in the Product.
11. DATA RETENTION
The Product may store your data as long as your account is current and active and for
thirty (30) days after our relationship with You has been terminated.
On a regular basis we create a backup of all data in our system, which is retained for
thirty (30) days, after which it will be removed permanently from all our systems. This
backup is for use by Trainer only in the case of disaster recovery or to maintain
business operations in the case of an emergency. Trainer will not restore data unless it
determines, in its sole discretion that a data recovery is necessary.
12. REFUND POLICY
We are unable to provide refunds for a subscription to a plan.
13. LIMITATION OF LIABILITY
You hereby agree to release, remise and forever discharge us and our directors,
employees, officers, and our affiliates, partners, service providers, vendors, and
contractors and each of their respective agents, directors, officers, employees, and all
other related persons or entities from any and all manner of rights, losses, costs,
claims, complaints, demands, debts, damages, causes of action, proceedings,
liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever,
and for any special, indirect or consequential, incidental or exemplary damages
(collectively, a “Claim”), whether in contract or tort, whether known or unknown, which
now or hereafter arise from, to the maximum extent allowed by law, that relate to, or
are connected with:
a. any indirect, incidental, special, consequential, or exemplary damages,
including but not limited to damages for loss of profits, goodwill, use data, or
other intangible losses;
b. your provision of any personal information provided to us subject to our legal
requirements relating to the protection of personal information;
c. communications received to you through your access to the Product;
d. the posting of information on the Product, Website, blog, account or any
affiliated social media, including but not limited to, User data, Cards, written
reviews, pictures, or personal information;
e. the use of the Product and any related applications including third party
f. the use of any software related to the Product;
g. viruses, spyware, service provider failures or internet access interruptions;
h. loss of use, loss of data, inaccuracy of data, payment failure, payment defect,
inaccurate calculations, downtime, identity theft, fraud or unauthorized access;
i. any content relating to the use of the Product,
even if you have been advised of the possibility of such Claim, or such Claim was
reasonably foreseeable and notwithstanding the sufficiency or insufficiency of any
remedy provided for herein or in any license.
In the event that we become liable for any damages whatsoever, you agree that such
damages shall be limited in the aggregate to the amount of fees or charges which You
have paid for the Product in the previous invoice.
To the extent permitted by applicable laws, You agree that You will defend, indemnify
and hold harmless us and our officers, directors, shareholders, employees, agents and
representatives including Cr8 Health and Fitness LLC., from and against any and all
damages, judgments, liability, costs and expenses (including without limitation any
reasonable legal fees), in whole or in part arising out of or attributable to: (a) generally,
your breach of these Terms; your access to and/or use of the Product; and any loss of,
or damage to, any property, or injury to, or death of, any person (including you) caused
by your access to and/or use of the Product; and (b) specifically, your breach of the
intellectual property rights of any third party to these Terms.
You agree that You will be solely responsible for all activities that occur under your
account, whether You are aware of them or not. You agree to hold us harmless and
release us from any loss or liability whatsoever that You may incur as a result of
someone other than You using your password or account, either with or without your
knowledge. You agree to indemnify us for any damages, third party claims or liabilities
whatsoever that we may incur as a result of activities that occur on or through your
account, whether or not You were directly or personally responsible.
15. GOVERNING LAW AND FORUM OF DISPUTES
By visiting the Website or using the Product, You agree that the laws of the province of
NH, without regard to the principles of conflict of laws, will govern these Terms and any
dispute of any sort that may arise between You and us. With respect to any disputes or
claims, You agree not to commence or prosecute any action in connection therewith
other than in the State of NH, and You hereby consent to, and waive all
defenses of lack of personal jurisdiction and forum non conveniens with respect to
venue and jurisdiction in the state courts of NH. You agree to pay reasonable
attorneys' fees and court costs incurred by us to collect any unpaid amounts owed by
Expenses: Each party shall be responsible for its own legal fees and other expenses
incurred in connection with the performance of any of its obligations hereunder.
You agree that we are not liable for a delay or failure in performance of the Product or
the provisions of these Terms caused by reason of any occurrence of unforeseen
events beyond our reasonable control, including but not limited to, acts of God, natural
disasters, power failures, server failures, third party service provider failures or service
interruptions, embargo, labour disputes, lockouts and strikes, riots, war, floods,
insurrections, legislative changes, and governmental actions.
If any portion of these Terms is deemed unlawful, void or unenforceable by any
arbitrator or court of competent jurisdiction, these Terms as a whole shall not be
deemed unlawful, void or unenforceable, but only that portion of these Terms that is
unlawful, void or unenforceable shall be stricken from these Terms.
The insertions of headings are for convenient reference only and are not to affect the
interpretation of these Terms.
19. ASSIGNMENT OF AGREEMENT
You may not, without our prior written consent, assign the Agreement, in whole or in
part, either voluntarily or by operation of law, and any attempt to do so will be a
material default of the Agreement and will be void. We may assign this Agreement to a
third party at any time in our sole discretion. The Agreement will be binding upon and
will inure to the benefit of the respective parties hereto, their respective successors in
interest, legal representatives, heirs and assigns.
You agree that if we do not exercise or enforce any legal right or remedy which is
contained in these Terms or which we have the benefit of under any applicable law,
this will not be taken to be a formal waiver of our rights and that those rights or
remedies will still be available to us. Waivers must be in written form and signed by an
authorized representative of the Company.
21. SURVIVAL OF AGREEMENT
All covenants, agreements, representations and warranties made in these Terms shall
survive your acceptance of these Terms and the termination of our relationship.
22. ENTIRE AGREEMENT
The Agreement will constitute the entire agreement between us and You with respect
to the subject matter hereof and all prior oral or written agreements, representations or
statements with respect to such subject matter are superseded hereby. In the event of
herein shall prevail.
By providing us with your e-mail address, You agree to receive all required notices
electronically, to that e-mail address or by mobile notifications via the Product. It is your
responsibility to update or change that address, as appropriate.
If You have any questions or comments regarding these Terms please contact our
head office by email at email@example.com.