Terms of Use

Last Updated: October, 1, 2013

Welcome to Prooffitness.com. Proof Fitness Holdings, LLC. (“PROOF FITNESS”) provides the information, services, products and programs offered through Prooffitness.com to you subject to the following agreement (“Terms of Use” or “Agreement”), which may be amended as described below.

ACCEPTANCE OF TERMS

By accessing and using the PROOF FITNESS website, www.Prooffitness.com (the “Website”), you agree to be bound by the Terms of Use. We may change the Terms of Use at any time by posting revisions to the Website, with or without notice to you, and your continued use of the Website indicates your agreement to the revised terms. We urge you to review the Terms of Use and if you do not agree to the terms of this Agreement or any revised policy please exit the Website immediately. You also agree to provide true, accurate, current and complete information about yourself as prompted by our online inquiry form. You acknowledge and agree that the Website may contain proprietary information that is protected by applicable intellectual property and other laws. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any of the content accessible on the Website.

DISCLAIMER

The Prooffitness.com Website is provided for your information. PROOF FITNESS will make every effort to keep the content on the Website current. However, PROOF FITNESS does not guarantee that it is the most up to date information available. For the most current and up to date information on class changes, contact information and any other information regarding PROOF FITNESS, its operations, programs, and offers, please contact a PROOF FITNESS location directly. PROOF FITNESS assumes no responsibility for, among other things, any service outages or interruptions, the unavailability of particular features or services, and the inability to access all or part of the Website. The Website and all of its contents are provided on an “as is” basis without warranties of any kind, either express or implied, including without limitation warranties of title or implied warranties of merchantability or fitness for a particular purpose. You acknowledge, by your use of the Website, that your use of the Website is at your sole risk, that you assume full responsibility for all costs associated with all necessary servicing or repairs of any equipment you use in connection with your use of the Website, and that PROOF FITNESS shall not be liable for any damages of any kind related to your use of the Website.

PERMITTED USE

You agree that you are only authorized to visit, view and to retain a copy of pages of the Website for your own personal use. You shall not duplicate, download, publish, modify or otherwise distribute the material on the Website for any purpose other than for personal use, unless otherwise specifically authorized by us to do so. The content and software on this Website is the property of PROOF FITNESS and is protected by U.S. copyright laws. You also agree not to use the Website to: (a) violate or solicit the violation of any applicable local, state, national or international law; (b) infringe the rights of any third party, including but not limited to intellectual property rights and privacy or publicity rights; and/or (c) interfere with or disrupt the Website. Furthermore, you agree that you will not use any automated device or process, such as a “bot” or a “spider,” to copy or extract information or content from the Website, except to use such information or content for purposes of listing the Website with a search engine or other service designed to direct users to the Website. You further agree that you will not copy, modify, or publicly display any information or content on the Website for use in any commercial manner, except to use such information or content for purposes of listing the Website in a search engine or other service directing users to our Website.

HEALTH RELATED INFORMATION

Prior to participating in any exercise program or activity, you should seek the advice of your physician or other qualified health professional. You agree that no health information provided on or by the Website will be used to diagnose, treat, cure or prevent any medical condition without consulting a licensed physician. Application or reliance on of the techniques, ideas, and suggestions accessed through the Website is at your sole discretion and risk.

LIMITED LICENSE

You are granted a limited, non-exclusive, revocable and non-transferable license to utilize and access the Website pursuant to the requirements and restrictions of these Terms of Use. PROOF FITNESS may change, suspend, or discontinue any aspect of the Website at any time. PROOF FITNESS may also, without notice or liability, impose limits on certain features and services or restrict your access to all or portions of the Website. You shall have no rights to the proprietary software and related documentation, if any, provided to you in order to access the Website. Except as provided for in these Terms of Use, you shall have no right to directly or indirectly, own, use, loan, sell, rent, lease, license, sublicense, assign, copy, translate, modify, adapt, improve, or create any new or derivative works from, or display, distribute, perform, or in any way exploit the Website, or any of its contents (including software) in whole or in part.

CHILDREN

The Website is not designed for use by children. By using Prooffitness.com and/or providing any information about yourself on Prooffitness.com, you agree and warrant that you are 18 years of age or older.

INTELLECTUAL PROPERTY

You acknowledge that all content and materials available on this Website are protected by United States copyrights, trademarks, service marks, patents, patent registration rights, trade secrets, and other proprietary rights and laws and are owned by PROOF FITNESS, our affiliates, associates, partners, and/or our licensors. Except where otherwise noted, you may download, print or view individual pages for noncommercial use, provided you do not delete or change any of the information, including copyright or trademark notices. You may only use the Website or its contents as expressly permitted in these Terms of Use and for no other purpose. PROOF FITNESS, our affiliates, associates, partners and/or our licensors retain exclusive ownership of all data, material and other information regarding your use of the Website. Except as we may expressly authorize, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the content or materials on the Website. Systematic retrieval of data or other content from the Website to create or compile, directly or indirectly, a collection, compilation, database or directory without the written permission of PROOF FITNESS is prohibited. The trademarks, logos and service marks displayed on this Website are the property of PROOF FITNESS or other third-parties. Users are not permitted to use trademarks, logos and service marks without prior written consent. The PROOF FITNESS and PROOF FITNESS words, and the PROOF FITNESS Corporate Logo and Design are trademarks or registered trademarks or service marks of PROOF FITNESS.

REPRESENTATIONS

By visiting the Website, you represent, warrant and covenant that: (a) you are at least 18 years old. When you submit your personal information and click the relevant box, you agree to comply with the Terms of Use and our Privacy Policy. When you submit your personal information, including, but not limited to, your first name, last name, telephone number, email address, preferred club location, postal address, city, state, and zip code, you agree to have those details validated and to receive advertisements, newsletters and promotional offers from PROOF FITNESS by direct mail, email and/or , SMS text message or telephone.

USER AGREEMENT

By using this Website, you agree to be bound by and to comply with this Agreement and the posted Privacy Policy which is incorporated by reference as though fully set forth herein. You are hereby expressly giving your permission to PROOF FITNESS to contact you periodically regarding services and products which may be of interest to you by direct mail, email, SMS text message or telephone. By submitting your personal information to, registering with, or requesting information from PROOF FITNESS, at or through the Website or other advertisement media made available by us (e.g., telemarketing or email marketing), you agree that such act(s) constitute(s) a purchase, an inquiry and/or an application with PROOF FITNESS for purposes of the Amended Telemarketing Sales Rule, 16 CFR §310 et seq. (the “ATSR”) and you may be contacted via email, SMS text message, direct mail and/or telemarketing by PROOF FITNESS in accordance with the ATSR. Notwithstanding that your telephone number may be listed on the Federal Trade Commission’s Do-Not-Call List (or a state do-not-call list) you have authorized us to contact you via telemarketing in accordance with the ATSR. If, at any time, you do not wish to be bound by these conditions or you are unsatisfied with the Website, its content or other legal notices, you agree that your sole and exclusive remedy is to discontinue using this Website and you may opt-out using the specific method(s) provided.

MARKETING MATERIALS

By inquiring or registering at the Website, you are giving your consent to receive promotions or newsletters from us. If you do not wish to receive these marketing materials, you may request to be removed by using the opt-out mechanism listed in the communications you receive. To opt-out of email promotions from PROOF FITNESS, you may simply use our convenient Unsubscribe Email at [email protected].

INFORMATION ON PROOF FITNESS WEBSITE

PROOF FITNESS attempts to make sure that the information on this Website is correct and complete. However, PROOF FITNESS makes no representation that the information on the Website is correct, complete or current. Errors may periodically occur and will be corrected upon discovery. PROOF FITNESS reserves the right to revoke any offer and correct any errors, inaccuracies or omissions. Prices and availability of products and services are subject to change without notice.

LINKS AND SEARCH RESULTS

The Website may contain links to websites operated by third parties throughout the World Wide Web. PROOF FITNESS has no control over these websites or the content within them, including the inadequacy of a third party’s terms of use or privacy policy. PROOF FITNESS does not guarantee, represent or warrant that the content contained in any third party websites is accurate, legal and/or inoffensive. PROOF FITNESS does not endorse the content of any third party website, nor does it make any representation or warranty about these websites, including that they will not contain viruses or otherwise impact your computer. By using the Website to search for or link to another website, you agree and understand that you may not make any claim against PROOF FITNESS for any damages or losses, whatsoever, resulting from your use of the Website to obtain search results or to link to another website. If you have a problem with a link from the Website, you may notify us a [email protected].

INDEMNIFICATION AND RELEASE

You agree to defend, indemnify and hold PROOF FITNESS, its parents, subsidiaries, partners, agents, affiliates, licensors, providers, successors and assigns and their respective officers, directors, employees and shareholders harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from, in connection with or as a result of your use or inability to use the Website and/or Website content, any information provided to you by the Website, or any violation of this Agreement by you.

YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE PROOF FITNESS AND ITS AFFILLIATES, PARTNERS, SERVICE PROVIDERS, CLIENTS, VENDORS AND CONTRCTORS, AND EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE WEBSITE.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE WEBSITE (THE “WEBSITE CONTENT”) ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE WEBSITE CONTENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW. NEITHER PROOF FITNESS, NOR OUR AFFILIATES, ASSOCIATES, PARTNERS AND/OR LICENSORS MAKE ANY WARRANTY THAT THE CONTENT OF THE WEBSITE IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE WEBSITE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS, DIRECTIONS OR RECOMMENDATIONS ON THE WEBSITE.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL PROOF FITNESS, OUR AFFILIATES, ASSOCIATES, PARTNERS AND/OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE WEBSITE OR FROM INFORMATION PROVIDED ON THE WEBSITE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

DISPUTES

These Terms of Use and your relationship with PROOF FITNESS shall be governed by the laws of the State of Kentucky without regard to Kentucky’s conflict of law provisions. Regardless of any statute or law to the contrary, you agree that any claim or cause of action arising out of or related to use of the Website or these Terms of Use, including any tort claim, shall be filed within one (1) year after such claim or cause of action arose or be forever barred. Furthermore, you and PROOF FITNESS agree that any claim arising out of or related to use of the Website or these Terms of Use, including any tort claim, shall be subject to final and binding arbitration submitted solely in the state of Kentucky and governed by the Commercial Dispute Resolution Rules of the American Arbitration Association.

WAIVER OF CLASS ACTION RIGHTS

BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE ASSERTED INDIVIDUALLY.

CONTACT INFORMATION

Except as explicitly stated otherwise, any notices shall be given to PROOF FITNESS via email at [email protected], or postal mail to PROOF FITNESS, Attn: Legal Department, 4101 Tates Creek Centre Dr. Ste. 164, Lexington, KY 40517, or to you via the email address you provide to PROOF FITNESS during the inquiry or registration process.

INTEGRATION AND SEVERABILITY

Except as specifically state otherwise, these Terms of Use constitute the entire agreement and understanding between PROOF FITNESS and you with respect to the Website and the subject matter hereof, and supersedes all prior or contemporaneous communications, understandings, and proposals, written or oral, between us. If one or more of the provisions of these Terms of Use is determined for any reason to be invalid or unenforceable, then such provisions shall be deemed severable from all of the remaining provisions and shall in no way affect the validity or enforceability of all other provisions, which shall remain in full force and effect.

FREE PASS ACCESS

Good for first time visitor only. Must be 18 years or older with a valid local ID. Some restrictions may apply. Must not have been a Proof Fitness member in the last 90 days. Limit one per person. College students must present their valid Student ID.