Terms of Service

Last revised: July 29, 2024

The Fit Kids Foundation Inc. (“Fit Kids” “we” or “us” or “our”) is a nonprofit organization dedicated to promoting children’s health through structured physical fitness and activity programs created by Fit Kids to build the foundation for a healthy, active lifestyle. These Terms of Service (these “Terms”) apply to the Fit Kids websites and online services at Fit Kids and FitKids.tv, 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 (all of the foregoing collectively, the “Services”).

By accessing or using the Services in any manner, you acknowledge that you have read, understood, and agree to be bound by these Terms and the terms of your Subscription Agreement (if applicable). If you do not agree to all these Terms, then you do not have permission to access and may not use the Services. If you are accepting these Terms on behalf of an entity or organization, you represent and warrant that you have the authority to bind such entity or organization to these Terms. You shall ensure that your users and Authorized Participants comply with these Terms.

Fit Kids reserves the right to change these Terms at any time, and such changes will be effective immediately upon being posted on the Site. Each time you use the Services, you should review the current Terms. You can determine when these Terms were last revised by referring to the “Last Revised” legend at the top of these Terms. Your continued use of the Services will indicate your acceptance of the current Terms; however, any change to these Terms after your last usage of the Services will not be applied retroactively.

PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND FIT KIDS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Definitions

“Authorized Participants” means any individuals that participate in a Program, including participants, coaches, supervisors, teachers, and parents.
“Authorized Sites” means locations (such as specific schools, community centers, etc.) at which you may operate a Program.
“Content” provided to you through the Site or the Services, including all instructional videos, images, guides, tools, publications, resources, quizzes, surveys, and other materials.
“Online Resources” means the Fit Kids online content, 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.
“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.

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 entered into when 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. These Terms are made part of, and are incorporated into, your Subscription Agreement.

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 Authorized Participants or Authorized Sites 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. 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 because of such acts or omissions.

Please review the Privacy Policy to learn about:

What information we may collect about you;
What we use that information for; and
With whom we share that information.

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.

License to Services

Subject to these Terms, Fit Kids grants you a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services solely pursuant to the terms of your Subscription Agreement and in connection with the operation of a Program. All rights not expressly granted to you hereunder remain the sole property of Fit Kids.

Restrictions

You agree not to do any of the following:

Engage in any activity that:
- infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- violates or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability;
- is fraudulent, false, misleading, or deceptive;
- is defamatory, obscene, pornographic, vulgar, or offensive;
- promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
- exploits minors or
- promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Services or any individual element within the Services, Fit Kids’ name, any Fit Kids trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Fit Kids’ express written consent;
Access, tamper with, or use non-public areas of the Services, Fit Kids’ computer systems, or the technical delivery systems of Fit Kids’ providers;
Attempt to probe, scan, or test the vulnerability of any Fit Kids system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Fit Kids or any of Fit Kids’ providers or any other third party (including another user) to protect the Services or Content;
Bypass any territorial restrictions, including IP address-based restrictions that may apply to the Services;
Attempt to access, scrape or search the Services or Content or download Content from the Services, including through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Fit Kids or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Fit Kids trademark, logo URL, or product name without Fit Kids’ express written consent;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Fit Kids;
Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services or Content;
Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Copy, use, index, disclose or distribute any information or data obtained from the Services, whether directly or through third parties (such as search engines), without Fit Kids’ express written consent;
Alter, replicate, store, distribute, or create derivatives from the Content available via the Services except as expressly permitted in writing by Fit Kids;
Impersonate or misrepresent your affiliation with any person or entity;
Access, use, or exploit the Services in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with Fit Kids or the Services;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Services or Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Services and Fit Kids’ systems. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Equipment

Fit Kids accepts orders for Fit Kids Program equipment (“Equipment”). Equipment is subject to corrections and changes without notice. In addition, advertising depictions, graphics, and diagrams are for illustrative purposes only and may not accurately reflect actual Equipment availability. Colors, styles, and other variants depicted are for illustration only and are subject to change. Unless otherwise specified at the time of purchase, you must pay for Equipment when you place the order. We will deliver ordered Equipment to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of full payment from you, but we will refund any fees that you prepaid for those products if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the Fit Kids Site or to your email address after processing your payment. Once purchased and shipped, products are non-refundable and non-returnable without our prior written consent.

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.

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 (“Customer Data”), as needed to provide you with the functionality of the Services and to improve 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: (1) comply with any applicable legal process; (2) enforce this Agreement; (3) respond to claims that any Customer Data violates the rights of third parties; (4) respond to your requests for customer service; or (5) 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.

Analytics

We collect and analyze data about how Fit Kids is used 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. 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.

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.

Trademarks

The trademarks, names, slogans, logos, characters, and service marks (collectively “Trademarks”) displayed on our Site belong to us or have been licensed to us. Your use/misuse of the Trademarks displayed on the Site, except as provided in these Terms, is prohibited. During your Subscription, you and Fit Kids may identify the other in promotional and marketing materials regarding 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. If 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 third-party service will be governed by its own terms and conditions, and that the third-party service may use and share your data in accordance with the privacy policy of such third party and your privacy settings on such a third-party service.

Fit Kids may contain links to other websites 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 to imply association, approval, or endorsement by Fit Kids. We reserve the right to withdraw linking permission without notice.

Disclaimer

THE SERVICES AND EQUIPMENT ARE 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 SERVICES; (B) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES; (C) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT OR OTHER COMMUNICATIONS; (D) WHETHER THE SERVICES OR EQUIPMENT 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 THE SERVICES 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.

Safety Warnings

THE SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR HEARD ON THE SERVICES. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.

NOTHING STATED OR POSTED ON THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS IN THE SERVICES. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

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. FIT KIDS’ TOTAL LIABILITY UNDER THESE TERMS 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 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 continues for so long as you have a Subscription. Except as otherwise set forth in your Subscription Agreement, upon expiration of the Subscription period set forth in your Subscription Agreement, your Subscription Agreement will automatically renew for additional periods of one year each unless and until a party provides written notice of termination not less than 30 days prior to the expiration of the then-current Subscription. You agree to provide Fit Kids with updated venue, participants, and other information regarding your use of the Services upon Fit Kids’ reasonable request. Fit Kids may suspend or terminate your access to Fit Kids at any time if Fit Kids, in its reasonable discretion, determines that you have failed to comply with these Terms. Such termination will be effective upon its delivery to you of a termination notice. 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, “Restrictions,” “Customer Data,” “Analytics,” “Disclaimer,” “Safety Warnings,” “Limitation of Liability,” “Indemnification,” “Term and Termination,” “Arbitration,” and “Miscellaneous” provisions.

Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Fit Kids and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.

You and Fit Kids agree that any dispute arising out of or related to these Terms or the Services is personal to you and Fit Kids and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Except for small claims disputes in which you or Fit Kids seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Fit Kids seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Fit Kids waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Fit Kids you agree to first contact Fit Kids and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Fit Kids by email at info@fitkids.org. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Fit Kids cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Santa Clara County, California unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section, a “consumer” means a person using the Services for personal, family or household purposes. You and Fit Kids agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

The enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Fit Kids, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

You and Fit Kids agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Fit Kids will pay the remaining JAMS fees and costs. For any arbitration initiated by Fit Kids, Fit Kids will pay all JAMS fees and costs. You and Fit Kids agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Fit Kids will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 10 by emailing us at info@fitkids.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes under California law and in the state and federal courts located in Santa Clara County, California.

If any portion of this Section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section will be enforceable.

Notice for California Residents

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an email to info@fitkids.org. You may also contact us by writing to 1143 Crane Street #203, Menlo Park, CA 94303 or by calling us at (650) 299-1599. Califonia residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Miscellaneous

These Terms are governed by California law. These Terms, together with your Subscription Agreement, constitute the entire agreement between you and Fit Kids with respect to the Services and supersede all prior or contemporaneous communications, agreements, and proposals with respect to the Services. You shall comply with all applicable federal, state, and local laws in connection with your use of the Services. No provision of these Terms shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of, or delay in exercising any right or remedy under these Terms shall operate as a waiver or estoppel of any right, remedy, or condition. If any provision of these Terms & Conditions is held invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer, or sublicense any of our rights or obligations under these Terms without your express prior written consent. 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.

For comments or inquiries, please contact Fit Kids by email at info@fitkids.org