Terms of Service

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    Terms of Service

    Last revised March 22, 2022

    Welcome to Fit Kids (“we” or “us” or “our”). Fit Kids is a nonprofit organization that is dedicated to promoting children’s health through structured physical fitness and activity programs created by Fit Kids as a means to build the foundation for a healthy, active lifestyle. These terms of Service (these “Terms”) apply to the Fit Kids website and online services at Fit Kids, the Fit Kids Mobile Apps and our related social media sites (collectively, the “Site”) and our services available through the Site and through Fit Kids (collectively, the “Services”).

    By accessing or using the Site in any way, including viewing videos or downloading any content, you acknowledge that you have read, understood, and agree to be bound by these Terms, including our Privacy Policy and the terms of your Subscription Agreement. If you do not agree to all of these Terms or the Privacy Policy, then you do not have permission to access and should not use the Services.

    Definitions

    “Program” means, collectively, the Fit Kids programs, Online Resources, training services and supporting written materials. The Fit Kids Programs and Online Resources are defined in full at Programs.

    “Online Resources” means the Fit Kids online content available to parties who register to be Fit Kids members (a “Member”), including Coach’s Corner; the Fit Kids Video library, Fit Kids TV and Home Fitness Kit videos, the Fit Kids Apps and other content that may be added from time to time.

    “Authorized Participants” means any individuals that participate in a Program, including but not limited to participants, coaches, supervisors, teachers and parents.

    License of Services. Subject to these Terms, Fit Kids grants you a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services pursuant to the terms of a Subscription Agreement entered into between you and Fit Kids (a “Subscription”). All rights not expressly granted to you hereunder remain the sole property of Fit Kids.

    Use of Services. All use of the Fit Kids Program and Online Resources shall be solely in connection with the Services. You are solely responsible for all use of the Services (whether or not authorized) under your account. You are solely responsible for all acts and omissions of your representatives, consultants, contractors, subcontractors, agents or customers who are authorized by Fit Kids or you to use the Services under your Subscription. You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and to promptly notify Fit Kids in writing of any unauthorized access to or use of the Services of which you become aware.

    Intended Users of Fit Kids Content. The Fit Kids Content is directed to parents, teachers, coaches and other adults,. The account holder may authorize access to children using the account holder’s credentials and supervising the child’s use of the Services. Video content on the Fit Kids Site is accessible to any party. The account holder is responsible for use of the Services by students or participants at its specific school or other venue and for users’ compliance with these Terms. Our website does not request or knowingly collect personal data from individuals under the age of 13. See our Privacy Policy for more information on what personal information we collect and how we use it.

    Subscription and Your Fit Kids Account

    Fit Kids offers users access to the Program through different types of subscriptions (each, a “Subscription”). You may access only the applicable portion of Fit Kids corresponding to the Subscription specified in the Subscription Agreement or order form you or your organization enter into when initially subscribing to Fit Kids (the “Subscription Agreement”). You may access Fit Kids only for the term specified in the Subscription Agreement and any applicable renewal period.

    You shall identify one individual from your organization, or yourself, for individual subscribers, to be the Fit Kids Subscriber under your account. You agree to limit access to all Services to the number of Venues and Participants specified in your Subscription Agreement. You must provide full and accurate information for your Fit Kids Subscription and account with a unique username and password (collectively, your “Log In”). You are responsible for maintaining the security of your account and your passwords; and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must immediately notify Fit Kids of any unauthorized uses of your account or any other breaches of security. Fit Kids will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The personal information you provide to Fit Kids for the purpose of creating and maintaining your account is governed by the Fit Kids Privacy Policy.

    You agree to pay all fees associated with your Subscription at the time you enter into your Subscription and at the time of renewal, as applicable. Customer Data. You grant Fit Kids the right to use any data, information or material provided or submitted by you or on behalf of you to Fit Kids in the course of using or accessing the Services (“Customer Data”), as needed to provide you with the functionality of the Services. You acknowledge and agree that Fit Kids may access, preserve and disclose your account information and Customer Data if required to do so by any applicable law or if Fit Kids in good faith believes that such access, preservation or disclosure is reasonably necessary to: (i) comply with any applicable legal process; (ii) enforce this Agreement; (iii) respond to claims that any Customer Data violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Fit Kids, its customers and/or users and/or the public. In no event shall Fit Kids or its designees have any liability or obligation to you in connection with exercising any rights set forth in this Section.

    Accuracy of Information. We attempt to ensure that information on the Site is complete, accurate and current. Despite our efforts, the information on this Site may occasionally be incomplete, inaccurate or out of date. We make no representation as to the completeness, accuracy or currentness of any information on this Site.

    Electronic Communications. When you visit the Site and send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that we may send email to you for the purpose of advising you of changes or additions to the Site, about any of our products or Services, or for such other purposes as we deem appropriate.

    Proprietary Rights

    The content provided to you through the Site or the Services, including all instructional videos, images, guides, tools, publications, resources, quizzes, surveys, and other materials (the “Content”), is for use solely in connection with the Fit Kids Program and pursuant to the terms of your Subscription. The Content is owned by Fit Kids or other third parties who have licensed their rights in Content to us. You may not delete or alter any copyright or other notice we place on any Content. Content is owned by us or our licensors or other users and is protected by copyright, trademark and other laws and regulations of the United States and foreign laws. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Content without our express prior written consent. You may not use Content in any way not expressly permitted by these Terms and your Subscription and if you do, your right to use the Services may be automatically terminated. The Content, the Services and the Site generally, are subject to change or termination without notice. The trademarks, names, slogans, logos, characters and service marks (collectively “Trademarks”) displayed on our Site belong to us or have been licensed to us. Nothing contained on the Site should be construed as granting any license or right to use any Trademark displayed on the Site. Your use/misuse of the Trademarks displayed on the Site, except as provided in these Terms, is strictly prohibited.

    Fit Kids grants you a limited, non-exclusive, non-transferable, and non-sublicensable license to access and use the portion of Fit Kids Site and Services applicable to your Subscription type, and the related Fit Kids Content, solely for non-commercial purposes, in accordance with these Terms and your Subscription. If you are licensed under your Subscription Agreement for multiple schools or venues, you will be permitted to make copies of Content for the numbers of schools or venues specified in your Subscription, provided that you provide attribution to Fit Kids and do not remove or obscure any Fit Kids copyright or trademark notices on any Content.

    We collect and analyze data about how Fit Kids is being used in order to evaluate our impact, develop improvements, meet external reporting requirements, and support fundraising and school recruitment. You acknowledge that Fit Kids owns and retains all rights, title, and interest in the data collected through Fit Kids. Please refer to our Privacy Policy for more information on our data collection and use.

    We report data and evaluation results to funders, partners, researchers, and other third parties. Except as contemplated by these Terms or as required by law, we will disclose data and results collected through Fit Kids on an anonymous basis unless you have given prior written consent for disclosure of names of schools or other individuals.

    External Communications. External Communications. You and Fit Kids may identify the other in promotional and marketing materials with regard to the Services and may use the other’s name and trademarks solely for this purpose. You and Fit Kids each acknowledge that it has no rights in the other’s name or trademarks other than the rights granted herein; the other party shall remain the sole holder of all rights in its name and trademarks; and all goodwill in the other’s name and trademarks generated by the other’s use shall inure solely to the benefit of the owning party. You and Fit Kids agree to comply with all reasonable trademark guidelines provided by the other party in such permitted use. Should you allow Fit Kids to photograph your venue and/or Authorized Participants participating in the Fit Kids Program, you represent and warrant that you have all rights and permissions necessary for Fit Kids to use such photographs for its promotional purposes, in all media now known or hereafter developed.

    Availability of Website

    You understand that traffic of data through the internet may cause delays during the display or download of information from Fit Kids. Fit Kids will use commercially reasonable efforts to maintain continuous availability of Fit Kids, except for scheduled maintenance, required repairs, and any interruption due to causes beyond the reasonable control of or not reasonably foreseeable by Fit Kids, including, without limitation, any force majeure event, as described below.

    Third Party Services and Links

    Services created by third party developers may be available to you on or through Fit Kids, including, without limitation, applications, websites, and other services. When you engage with a third party service, you are interacting with the third party, not with Fit Kids. You understand that the service will be governed by its own terms and conditions, and that the service may use and share your data in accordance with the privacy policy of such third party and your privacy settings on such a service.

    Fit Kids may contain links to other websites that are not operated by or related to Fit Kids. Fit Kids is not responsible for the content, accuracy, or opinions expressed in such third party websites, and does not investigate, monitor, or check these websites for accuracy or completeness. The inclusion of any linked website in Fit Kids does not imply approval or endorsement of the linked website by Fit Kids. Please refer to our Privacy Policy for more information on third party links.

    You may provide a link to the homepage for Fit Kids, so long as you do not violate applicable laws, damage or exploit Fit Kids’ reputation, or establish a link so as to imply association, approval, or endorsement by Fit Kids. We reserve the right to withdraw linking permission without notice.

    Disclaimer; No Warranties

    Fit Kids is provided “as is,” “as available,” and “with all faults” without any express or implied warranties. We make no representations or warranties of any kind, whether oral or written, whether express, implied, or arising by statute, custom, course of dealing, or trade usage, with respect to: (a) the availability, timeliness, accuracy, quality, security, or reliability of the Fit Kids Site; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Fit Kids Site; (c) the deletion of, or the failure to store or to transmit, any content or other communications; (d) whether Fit Kids will meet your needs; and (e) any third party links, services, or information.

    No advice or information, whether oral or written, obtained from Fit Kids or through Fit Kids provides or creates any warranty not expressly made in these Terms. To the fullest extent permissible under applicable law, Fit Kids expressly disclaims any and all implied warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Fit Kids has no responsibility for your decisions or actions with respect to use of Fit Kids Content, the Program or any materials or equipment provided by Fit Kids. You are fully responsible for making your own evaluations, decisions and actions regarding use of Fit Kids Content, the Program or any materials or equipment provided by Fit Kids and for the outcomes and consequences of such use. Fit Kids has not evaluated your facilities, environment, equipment or personnel, and makes no representations or recommendations about the suitability of Fit Kids Content, the Program or any materials or equipment provided by Fit Kids for you or your organization.

    You acknowledge that Fit Kids has not made and does not make any representations, warranties, promises, or guarantees of any kind about the success or outcome of use of Fit Kids Content or Program including, without limitation, representations about improvements in school environment, academic performance, or student development. You and your organization are entirely responsible for use of Fit Kids Content.

    Limitation of Liability

    FIT KIDS SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF FIT KIDS HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL FIT KIDS BE LIABLE TO YOU FOR DAMAGES ARISING OUT OF OR RELATING TO (A) YOUR INABILITY TO USE FIT KIDS, TO TRAIN OTHER USERS IN YOUR ORGANIZATION, IF APPLICABLE, OR ANY DECISION OR ACTION BY YOU IN RELIANCE UPON FIT KIDS. FIT KIDS’ TOTAL LIABILITY UNDER THESE TERMS (INCLUDING, WITHOUT LIMITATION, ANY AMOUNTS PAYABLE UNDER SECTION 11.2) WILL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU OR YOUR ORGANIZATION FOR YOUR SUBSCRIPTION DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR TWO HUNDRED DOLLARS, WHICHEVER IS GREATER, EXCEPT THAT NO SUCH LIMITATION WILL APPLY IN RESPECT OF LIABILITIES INVOLVING THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD OF FIT KIDS.

    Indemnification

    You hereby agree to indemnify, defend, and hold Fit Kids and its directors, officers, employees, agents, and assigns (collectively, “Fit Kids Indemnified Parties”) harmless against all claims, liabilities, losses, damages, and expenses, including reasonable attorneys’ fees and expenses, relating to or arising out of your breach of these Terms, your use of the Fit Kids Services, a claim that your use of the Services violates any applicable law or regulation, your acts of willful negligence or omissions, your actions or other matters related to your use of Fit Kids, including, without limitation, any claims by students, parents, or other third parties arising from such user’s activities under your account or your use of Fit Kids Content. You will not have any obligation to indemnify any Fit Kids Indemnified Party to the extent the liability is solely caused by the gross negligence, willful misconduct, or fraud of such Fit Kids Indemnified Party. This obligation shall survive the termination of your use of the Services.

    Term and Termination

    The term of this Agreement is as specified on your Subscription Agreement (the “Initial Term”) and any renewal term, including any renewal term resulting from automatic renewal and your continued use of the Fit Kids Services (a “Renewal Term”). These Terms apply to the Initial Term any Renewal Term. You agree to provide Fit Kids with updated venue, participants and other information regarding your use of Fit Kids Services during Renewal Terms upon Fit Kids’ reasonable request. Fit Kids may suspend or terminate your access to Fit Kids at any time, for any reason or no reason, including if you or your organization fails to make timely payment of fees or if Fit Kids, in its discretion, determines that you have failed to comply with these Terms. Such termination will be effective upon its delivery to you of a notice to that effect. Upon termination, your and Your Authorized Participants’ right to use the Services under your Subscription shall terminate, without refund. Fit Kids reserves the right to change, suspend, or discontinue all or any aspect of the Site at any time without notice. All provisions of the Terms which, by their nature, should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnifications and limitations of liability.

    Changes to Terms

    Fit Kids reserves the right to make changes to these Terms, at any time without notice. Changes are effective immediately upon posting and your continued use of Fit Kids constitutes acceptance of such changes. By continuing to access or use the Services after any revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, you are no longer authorized to use the Services.

    Compliance with Law

    You agree that your use of the Site and Services will comply with all applicable federal, state, and local laws.

    Entire Agreement

    These Terms, together with any Subscription Agreement, express the final, complete, and exclusive agreement between you and Fit Kids, and supersedes any and all prior or contemporaneous written and oral agreements, arrangements, negotiations, communications, course of dealing, or understanding between Fit Kids and you relating to its subject matter.

    Assignment. The Agreement is personal to you, and you may not assign or transfer your rights or obligations under the Agreement. We may assign our rights and obligations under the Agreement to a third party in connection with a merger or sale of all or substantially all Our assets related to the Services. Except as specifically provided in Section 8.2, these Terms are for the exclusive benefit of you, your Authorized Participants, and Fit Kids.

    Severability

    If any provision of these Terms is held illegal, invalid, or unenforceable, all other provisions of these Terms will nevertheless be effective, and the illegal, invalid, or unenforceable provision will be considered modified such that it is valid to the maximum extent permitted by law.

    Force Majeure

    Fit Kids will not be required to perform or be held liable for failure to perform if nonperformance is caused by power failures, nonperformance of internet or data communications facilities, third party mechanical or other equipment breakdowns, fiber optic cable cuts, interruption or failure of telecommunications or digital transmission links, labor strikes, work stoppages, war, hostilities, a national emergency, acts of God, epidemics, quarantines, natural disasters, or any other causes beyond the control of Fit Kids.

    Governing Law; Jurisdiction

    These Terms of Service shall be governed by California law. You and Fit Kids consent to the exclusive jurisdiction of the state and federal courts for the Northern District of California.

    By continuing to use or access the Site or the Fit Kids Program, you agree to be bound by and subject to these terms.

    Please read the Fit Kids Privacy Policy. For comments or inquiries, please contact Fit Kids by email at info@fitkids.org