If you choose to use the Service, you represent that you are authorized to accept the terms of this Agreement on behalf of yourself or the organization you represent.
Changes and Modifications
Links To Other Sites
The Service may contain links to other independent third-party websites (“Linked Sites”). Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Aradia Fitness’s control, and Aradia Fitness is not responsible for and does not necessarily endorse the content or practices of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with Linked Sites.
2. Description of Service
As a visitor to the Aradia Fitness website, the Aradia Fitness Service allows you to post and view reviews of businesses that are subscribers of the Aradia Fitness Service and those non-subscribed businesses that are simply listed on the Aradia Fitness website. Further, you can book appointments and classes and make purchases directly from businesses that are subscribers using the Aradia Fitness website.
3. Conditions of Use and User Conduct
As a condition of use, you agree to the following:
- You acknowledge that the Service is for personal use only. You agree that you will not use the Service for any commercial purpose.
- You must not use the Service to harass, threaten, impersonate, or intimidate any person or business.
- You must not use the Service to post fraudulent, inaccurate, or misleading ratings or reviews of any person or business.
- You must not upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable.
- You must not upload, post, email, transmit, or otherwise make available any content that is in violation of copyright or trademark law – or any other law protecting intellectual property in any jurisdiction – or that violates the publicity or privacy rights of any person or business.
- You must not upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “affiliate links,” or any other form of solicitation.
- You must not transmit any worms or viruses or any code of a destructive nature.
- You must comply with all applicable laws in your jurisdiction (including but not limited to intellectual property laws).
- You must not use the Service for any illegal or unauthorized purpose. If you are an international user, you agree to comply with all local laws regarding online conduct and acceptable content.
- You acknowledge that your use of the Service may involve the transmission of private information, including potentially personal health information, via unsecure means such as email.
4. Guidelines for Reviews
The following guidelines are provided to users of the Service who wish to review Aradia Fitness subscribers:
- Your review should be objective, useful, and informative. Be specific to give the reader a feel for your experience.
- Write about the kind of information you would want when asking a friend or coworkers for a recommendation. Did the experience meet your expectations? Would you go back? Would you recommend this business?
- Keep it short and to the point. Write short sentences that stick to the highlights of your experience. The recommended length for a review is 100 to 300 words.
5. User Generated Content
6. Our Intellectual Property
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “Aradia Fitness Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Aradia Fitness Content, contained on the Service is owned, controlled, or licensed by or to Aradia Fitness, and is protected by trade dress, copyright, and trademark laws, and various other intellectual property rights. Except as expressly provided in this Agreement or otherwise permitted by law, no Aradia Fitness Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed (including by means of a digital audio transmission), encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for any purpose, without regard to whether that purpose is commercial or non-commercial in nature, without Aradia Fitness’s express prior written consent.
7. Violation of This Agreement – Termination
You agree that Aradia Fitness may, in its sole discretion and without prior notice, terminate your access to the Service and/or block your future access to the Service if we determine that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Service. If Aradia Fitness does take any legal action against you – or you take action against Aradia Fitness – as a result of a violation of this Agreement, the prevailing party will be entitled to recover from the non-prevailing party, and the non-prevailing party agrees to pay, all reasonable attorneys’ fees and costs of such action – in addition to any other relief granted to the prevailing party. You agree that Aradia Fitness will not be liable to you or to any third party for termination of your access to the Service as a result of any violation of this Agreement or other agreements or guidelines that may be associated with your use of the Service.
8. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ARADIA FITNESS AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS (IF ANY) (THE “ARADIA FITNESS AFFILIATES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. ARADIA FITNESS AND THE ARADIA FITNESS AFFILIATES MAKE NO WARRANTY THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) USER CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) USER CONTENT WILL BE HOSTED AND/OR TRANSMITTED IN ACCORDANCE WITH THE PREFERENCES YOU SPECIFY, INCLUDING ANY PREFERENCES YOU SPECIFY REGARDING THE ANONYMITY AND/OR PRIVACY OF ANY USER CONTENT; (e) ANY PRODUCTS, SITES, INFORMATION, OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (f) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE WILL BE CORRECTED. ANY MATERIAL, INFORMATION, OR DATA DOWNLOADED OR OTHERWISE ACCESSED OR OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER HARM THAT MAY RESULT FROM THE DOWNLOAD OF SUCH MATERIAL. NO ADVICE, REPRESENTATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ARADIA FITNESS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ARADIA FITNESS AND THE ARADIA FITNESS AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY REPERCUSSION OF THE PUBLICATION OF ANY USER CONTENT YOU PROVIDE TO ARADIA FITNESS; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE; OR ANY OTHER TANGIBLE OR INTANGIBLE LOSSES. THIS ALSO INCLUDES ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY CHANGES THAT ARADIA FITNESS MAY MAKE TO THE SERVICE; (b) ANY PERMANENT OR TEMPORARY CESSATION OF OR ERROR IN THE SERVICE; (c) THE PUBLICATION OF ANY USER CONTENT YOU PROVIDE TO ARADIA FITNESS; OR (d) THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY CONTENT OR OTHER PROPERTY MAINTAINED THROUGH THE SERVICE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ABOVE SHALL APPLY IRRESPECTIVE OF THE THEORY OF LIABILITY, INCLUDING CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY, EVEN IF WE (OR OUR AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT ARADIA FITNESS AND THE ARADIA FITNESS AFFILIATES SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IF YOUR NON-IDENTIFIABLE DATA ARE USED FOR RESEARCH PURPOSES, THEN THE LIMITATION OF LIABILITY AND INDEMNITY CLAUSES CONTAINED WITHIN THE END USER LICENSE AGREEMENT/TERMS OF SERVICE AGREEMENT ARE WAIVED WITH RESPECT TO ANY HARMS SUFFERED OR LIABILITIES INCURRED AS A RESULT OF ANY RESEARCH ACTIVITIES.
10. Exclusions and Limitations
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, THE ARADIA FITNESS AFFILIATES’ LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You will indemnify and hold Aradia Fitness and/or the Aradia Fitness Affiliates harmless from and against any and all liabilities and costs (including reasonable attorneys’ fees) incurred by Aradia Fitness and/or the Aradia Fitness Affiliates in connection with any claim arising out of your breach of the Agreement. Aradia Fitness reserves the right, in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
12. General Terms
This Agreement is the whole legal agreement between you and Aradia Fitness. It governs your use of the Service and completely replaces any prior agreements between you and Aradia Fitness with respect to the Service.
You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the Province of Alberta, Canada.
In the event of any controversy or dispute between Aradia Fitness and you arising out of or in connection with your use of the Service, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time, then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Statute of Limitations
You agree that regardless of any statue or law to the contrary, any claim under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred.
Severability of Terms; Non-Waiver of Terms; Assignment
If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If Aradia Fitness does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights. Aradia Fitness may assign or delegate all rights and obligations under the Agreement, fully or partially.
Aradia Fitness may provide you with notices, including those regarding changes to the Agreement, by email or through postings to the Service.
13. Accepting the Agreement
We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Business Terms and Conditions at any time without further notice. If we do this, we will post the changes to these Business Terms and Conditions on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Software Service or the website after any such changes constitutes your acceptance of the new Business Terms and Conditions. If you do not agree to abide by these or any future Business Terms and Conditions, do not use or access (or continue to use or access) the Software Service or the website. It is your responsibility to regularly check the Software Service and the website to determine if there have been changes to these Business Terms and Conditions and to review such changes.
14. Software Service
Aradia Fitness provides online business management software designed specifically for businesses in the wellness industry. Aradia Fitness will make the Software Service to which you have subscribed indicated in the Software Licensing Agreement available to you, subject to the terms and conditions hereto.
In addition to our rights set forth in the Section titled “Termination” of this Agreement, we reserve the right to suspend the Software Service (a) during planned downtime (b) in connection with a Force Majeure event , or (c) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to change, suspend or discontinue any features, components, or functions of the Software Service at any time. If we make any material changes to the Software Service, we will notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Software Services or to produce or release new versions of the Software Service.
15. License Grant & Restrictions
Aradia Fitness hereby grants you, during the terms of this Agreement, the non-exclusive, non-transferable, worldwide right to use the Software Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Aradia Fitness and its third party licensors or suppliers (collectively, the “Licensors”).
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Service or the content provided by or on behalf of Aradia Fitness through the Software Service (the content) in any way; (ii) modify or make derivative works based upon the Software Service or the content; (iii) create Internet “links” to the Software Service or “frame” or “mirror” any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Software Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software Service, or (c) copy any ideas, features, functions or graphics of the Software Service. You agree that Aradia Fitness may publish, modify and amend any and all content appearing within Aradia Fitness.com, the Software Service and all other internet domains or content feeds owned, managed, or controlled by Aradia Fitness, including content consisting of promotions, advertisements and listings for non-competing local businesses, or products and services offered by Aradia Fitness.
16. Ownership of Intellectual Property Rights and Customer Data
You acknowledge and agree that, subject to the license grants contained in this Agreement, Aradia Fitness, or its licensors, retains all right, title and interest, including all related intellectual property rights, in and to the Aradia Fitness technology, the Content and the Software Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, “Feedback”) or other information provided by you or any other party relating to the Software Service. You retain all right, title and interest to any and all customer data, including client or consumer review data, captured by the Aradia Fitness system (“Customer Data”) or provided to Aradia Fitness, subject to Aradia Fitness’s right to use such Customer Data to provide the Software Service to you. You grant Aradia Fitness a royalty-free, irrevocable, non-exclusive, perpetual, worldwide license to use, modify, aggregate, prepare derivative works, publish, distribute and sublicense the client or consumer review data and any surveys Aradia Fitness conducts on your behalf. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Aradia Fitness Software Service, Aradia Fitness technology, Aradia Fitness Content, or Aradia Fitness intellectual property except for the limited licenses granted to you under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by Aradia Fitness or its licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of Aradia Fitness or its licensors. Aradia Fitness works with third parties to offer its customers additional products and services from time to time. Aradia Fitness collects anonymized, aggregate data to provide such additional product and services to you and you agree to permit us to use such anonymized, aggregate data.
The trademarks, trade names, service names or logos associated with the Service (collectively, the “Marks”) are trademarks of Aradia Fitness or its licensors, and no right or license is granted to use them. You hereby acknowledge Aradia Fitness or its licensors’ perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. You agree not to use or attempt to register any Mark that is confusingly or deceptively like the Marks.
17. Customer Responsibility and Passwords
You are responsible for all activity occurring under your subscriber user accounts, and shall abide by all applicable local, state, provincial, national and foreign laws, treaties and regulations in connection with your use of the Software Service, including those related to data privacy, international communications and the transmission of technical or personal data. You also will choose a password and a username. You are entirely responsible for maintaining the confidentiality of your password, username, and account. Furthermore, you are entirely responsible for all activities that occur under your account. You agree to notify Aradia Fitness immediately of any unauthorized use of your account or any other breach of security. Aradia Fitness will not be liable for any loss that you may incur because of any act or omission by anyone other than Aradia Fitness, either with or without your knowledge. You warrant and represent that: (i) the content to be transmitted by or on behalf of you does not constitute SPAM; (ii) the content to be transmitted by or on behalf of you is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) you have complied and will comply with all applicable laws respecting its execution and performance of this Agreement.
18. Customer Data and Account Information
Aradia Fitness does not own any Customer Data, information, or material that you submit to the Software Service in the course of using the Software Service. Except in accordance with this Agreement, if applicable, or as required by law, Customer Data in identifiable form will not be disclosed, sold, assigned, licensed, or otherwise disposed of by Aradia Fitness to any third party. You, not Aradia Fitness, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in this Agreement or as required by law, Aradia Fitness shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. Aradia Fitness reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. Upon termination for cause, your right to access or use Customer Data immediately ceases, and, except as set forth in the Section titled “Listing services”, below, Aradia Fitness shall have no obligation to maintain or forward any Customer Data. Notwithstanding the foregoing, if you are part of a franchise organization which has or later executes an agreement with Aradia Fitness, and the franchisee has granted the franchisor access to their data, your Customer Data may be shared with your franchisor, and/or franchise association.
Aradia Fitness may, but has no obligation to, monitor any content created by you using the Software Service. Aradia Fitness may disclose any information necessary or appropriate to satisfy Aradia Fitness’s legal obligations, protect Aradia Fitness or its customers, or operate the Software Service properly. Aradia Fitness, in its sole discretion, may refuse to post, remove, or require you to remove, any of your content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. Aradia Fitness may, in its discretion, also require you to place all or any portion of your content behind password protection. If Aradia Fitness has requested you content be or have placed behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password. If Aradia Fitness requests that you place any of your content behind password protection and you fail to do so promptly, Aradia Fitness may (a) place such content behind password protection itself, or (b) immediately terminate this Agreement.
19. Limited Liability
IN NO EVENT SHALL ARADIA FITNESS, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF ARADIA FITNESS HAS BEEN ADVISED OR WARNED BY YOU, CUSTOMER OR END USER OF THE POSSIBILITY OF SUCH DAMAGES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER CUSTOMER CONTENT, END USER DATA OR CARDHOLDER DATA, RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SOFTWARE SERVICE OR THE OPERATION OF ARADIA FITNESS OR ITS LICENSOR’ NETWORKS; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY YOU, CUSTOMER VIA ARADIA FITNESS OR ITS LICENSORS’ NETWORKS. THE TOTAL CUMULATIVE LIABILITY OF ARADIA FITNESS TOGETHER WITH ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AFFILIATES TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE SERVICE IS LIMITED TO THE AMOUNT OF FEES YOU PAY AS IT PERTAINS TO YOUR LOCATION ONLY, TO ARADIA FITNESS IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. The foregoing limitations will apply even if Aradia Fitness has been notified of the possibility of such damages and notwithstanding the failure of the essential purpose of any limited remedy. No action or claim relating to this Agreement shall be made against Aradia Fitness or its Licensors, subsidiaries, officers, directors, employees, partners or affiliates by You, or on Your behalf more than 2 years (24 months) after the event giving rise to such action or claim. If your non-identifiable data are used for research purposes, then the limitation of liability and indemnity clauses contained within the End User License Agreement/Terms of Service Agreement are waived with respect to any harms suffered or liabilities incurred as a result of any research activities.
You agree to indemnify and hold Aradia Fitness (including its parent, subsidiaries, affiliates, officers, directors, agents, and employees, contractors, sub-contractors, Licensors, partners and affiliates) harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your breach or alleged breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party (including without limitation any negligent, willful, tortious or illegal conduct by you affecting a third party).
This Agreement will be in force throughout the Term beginning on the Subscription Start Date. This Agreement will AUTOMATICALLY RENEW each month for a 4-week period on the anniversary of the Subscription Start Date (“Renewal Date”). If you choose not to renew, you must notify Aradia Fitness in writing at least 30 days prior to the Renewal Date, in which case, you will continue to have access to the Software Service and be billed until the end of the then current term. All month-to-month Software Service plans require 30 days written notice to Aradia Fitness prior to the date of cancellation, and you will continue to be billed for the Software Service until such time that is 30 days from the date that written notice is provided. All Software Service plans or subscriptions that are not on a month-to-month basis require 30 days written notice as well as a cancellation fee being the lower of the aggregate amount of the payments due as if the Software Service plan had continued until the end of the then current term or the aggregate of the discounted amount applied to the payments made or billed during the then current term. The discounted amount is the difference between the Subscription Fee billed or paid by you or paid by the licensee responsible for paying and the Regular Subscription Fee normally charged for your Software Service plan. Should your cancellation date fall during a subscription period or month the full monthly subscription fee will be charged or billed, no partial subscription fees will apply and no partial subscription credits will be granted for any cancellation fees or fees in lieu of cancellation notice. No cancellation fees will apply so long as written cancellation notice is provided within the first 30 days of the term for new subscription. Otherwise our standard policies and conditions apply.
Any breach of your payment obligations or unauthorized use of the Aradia Fitness Technology, Content or Software Service will be deemed a material breach of this Agreement. Aradia Fitness, in its sole discretion, may terminate your password, account, or use of the Software Service if you breach or otherwise fail to comply with this Agreement. In addition to any other rights granted to Aradia Fitness herein, Aradia Fitness reserves the right to suspend or terminate this Agreement and your access to the Software Service if your account becomes delinquent, or otherwise engage in fraudulent or unlawful activities. In addition, Aradia Fitness may terminate a free account at any time in its sole discretion. You agree and acknowledge that Aradia Fitness has no obligation to retain the Customer Data, and may delete such Customer Data on termination or if you have materially breached this Agreement, including but not limited to failure to pay Software Service fees, and such breach has not been cured within 15 days of notice of such breach. In addition, Aradia Fitness may terminate this Agreement if you request a refund pursuant to Section 11 in three consecutive months. Aradia Fitness will have no liability for any suspension or termination of your account in accordance with this paragraph.
23. Billing & Pricing
Pricing for the subscribed Software Services (“Subscription Fees”) are set forth on our website at https://www.Aradia Fitness.com (or such other URL as specified by Aradia Fitness), and may be updated by Aradia Fitness from time to time, or as otherwise stated in the Software Licensing Agreement. You agree to pay Aradia Fitness the Subscription Fees and any other applicable fees stated in your Software Licensing Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated in a Software Licensing Agreement, fees must be paid in advance of each billing period. Aradia Fitness charges and collects in advance for use of the Software Service. No refunds will be provided for fees billed to you or that have been paid unless you were billed, or a payment was processed in error. You will be billed your monthly fee on the date you start or are given access to your Software Service for the first month of Software Service and the monthly Subscription Fee thereafter. Aradia Fitness will automatically renew as per Section 8 and bill your credit card/bank account or other form of payment or issue an invoice to you every month for monthly fees. The renewal charge will be equal to the then-current fee in effect at the time of renewal. These fees are subject to change from time to time, at any time, without notice. It is your responsibility to provide Aradia Fitness with any changes in your payment details such as updating your credit card, or any changes to your banking information. Should your primary form of payment be returned as incomplete, rejected or cancelled we will immediately charge or debit your secondary form of payment (credit card/bank account or other) together with any fees or additional charges incurred because of the failure to complete the processing through your primary form of payment. Your secondary form of payment will be used thereafter on an going forward basis without notice to you, until you provide Aradia Fitness with updated billing information regarding your primary form of payment.Fees for other services will be charged on an as-quoted basis, including but not limited to:
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases or use of Aradia Fitness. If Aradia Fitness has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide Aradia Fitness with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Aradia Fitness is solely responsible for taxes assessable against it based on its income, property, and employees.
23.2 SMS Text Messages
Aradia Fitness can send SMS text messages to your clients and provides you with 500 (“Professional Edition”) and 1000 (“Enterprise Edition”) SMS text messages per month in Canada & United States. You will be subject to a fee of $.025 USD per additional SMS Text Message beyond those that are included with your Edition of the Software Service. Customers in Canada & United States will be subject to a fee of $.025 USD per SMS Text Message sent if your Edition does not include an SMS Text Message bundle. Customers outside of Canada & United States, do not have free SMS text messages included in the Professional or Enterprise Editions of the Software Service, and additional fees will apply at the rate of .09 cents USD per SMS Text Message.
23.3 Direct Mail
By opting in to use Aradia Fitness’s Direct Mail feature, you will be subject to the service fees charged per printed postcard sent. You assume full responsibility that any custom content you submit is correct, and in the event that you submit incorrect information, misspellings, grammatical errors, or incorrect address information etc., you agree to pay the service fees associated with printing and sending the postcard.
23.4 One-Time Fees
One-time fees for other services may be charged on an as quoted basis. One-time fees may include, but are not limited to, Setup Fees, Merchant Processing Approval Fees, Annual App Fees, Early Termination Fees, Consulting Fees, Training Fees, Support Fees, etc.
23.5 Overdue Charges
Any amounts not received by the applicable due date may accrue interest at 1.5% of the outstanding balance per month plus the cost of collection.
You or your third-party licensee responsible for paying will provide Aradia Fitness with valid and updated credit card information or another form of payment acceptable to Aradia Fitness. If you provide credit card information, you represent that you are authorized to use the card and you authorize Aradia Fitness to charge the card for all payments hereunder. By submitting payment information, you authorize Aradia Fitness to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Aradia Fitness for purposes of acknowledging or completing any payment. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact Aradia Fitness prior to the next billing cycle. Upon proper notification, Aradia Fitness, in its sole discretion may issue a credit to your bank account, credit card, debit card or whichever other payment method Aradia Fitness determines as acceptable.
25. Representations & Warranties
Each party represents and warrants that it has the power and authority to enter into this Agreement. Aradia Fitness represents and warrants that it will provide the Software Service in a manner consistent with generally accepted industry standards. You represent and warrant that You have not falsely identified Yourself or Your corporate entity nor provided any false information to gain access to the Software Service and that all Bank Card and other billing information that you have provided is correct. THE SOFTWARE SERVICE IS PROVIDED “AS IS”AND “AS AVAILABLE”. EXCEPT AS EXPLICITLY SET FORTH ABOVE, ARADIA FITNESS IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SOFTWARE SERVICE, CONTENT OR TECHNOLOGY, AND ARADIA FITNESS AND ITS LICENSORS, DISTRIBUTORS, AND PARTNERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SOFTWARE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, ARADIA FITNESS AND THE AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SOFTWARE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY THE CUSTOMER DUE TO CAUSES BEYOND ARADIA FITNESS’S OR THE AFFILIATES’ CONTROL.
26. Email Compliance
Aradia Fitness has worked to achieve email compliance. You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those clients with which you have an existing business relationship, and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email practices including those covered in Section titled “Customer responsibility and passwords” of this agreement. Because of carrier technologies, Aradia Fitness makes no expressed or implied warranty of individual message receipt. Aradia Fitness is not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
27. Text Message Compliance
The Telephone Consumer Protection Act (TCPA) is a federal law regulating the way consumers are contacted by telephone, fax, and text message. The TCPA regulations apply to the text and automated landline messages you can send through the Aradia Fitness Software Service to communicate with your clients.
27.1. Prior Consent
TCPA regulations require that companies obtain consent from consumers prior to sending any sort of text or automated telephone messages. For HIPAA covered entities, requirements for how consent is obtained are different depending on whether the messaging only contains health-related information or if it includes marketing-focused content. The TCPA regulations are described below to help you understand the restrictions. Aradia Fitness automates text message communications, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them.
27.2. Consent for Informational Health Care Messages
For HIPAA covered entities sending informational only health-related messages, the client’s consent can be written, electronic or verbal. With these guidelines, you can send your clients informational messages about their health care. Such health-related informational messages include appointment reminders without marketing content.
27.3. Consent for Marketing-Focused Messages
The Software Service can also be used to send or automate marketing-focused messages, which are subject to more stringent TCPA regulations. Messages with any sort of marketing content require that your client provide you with “express written consent”, which may be obtained in an electronic format. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your client affirmatively agrees to receive such messages. The prior express consent must include your clients’ written or electronic acceptance. Specifically, by entering a cell phone number into your Software Service and not opting such cell phone out of the Aradia Fitness text message feature, you are directing Aradia Fitness to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages.
TCPA regulations require you to honor client requests to opt-out of future telephone, fax, or text messages. The Software Service allows you to honor these requests on an individual basis. A client may also opt-out of text messages at any time by replying with the word STOP to any text message sent through the Aradia Fitness. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature.
27.5. Identity Disclosure
TCPA regulations require you to identify your business by name and telephone number in all text messages you send to clients. The Software Service enables you to comply with this rule by requiring you to include identifying tokens in all text message templates. You will not be able to send any text messages that do not contain complete and proper identification. Additionally, you may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords” of this Agreement.
Aradia Fitness makes no expressed or implied warranty of individual message receipt. Aradia Fitness shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You shall be solely liable to comply with applicable laws and regulations within your jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to your clients.
28. For Canada-Based Businesses Subject to Commercial Electronic Message Requirements
You must comply with CASL requirements including, but not limited to, providing identification, making available an unsubscribe (opt-out) mechanism, and obtaining consent from the message recipient. You are responsible for applying all consent, identification, and opt-out requirements. For text messages, you agree to adopt the double opt-in process wherein 1) you may only use text message services for those clients with whom you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the clients must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery, including that portion of the message which indicates who is sending the message, along with a mailing address, plus either a contact phone number, email address or contact page URL. You may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords” of this Agreement. Because of carrier technologies, Aradia Fitness makes no expressed or implied warranty of individual message receipt. Aradia Fitness shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You agree to make your internal practices, books, and records, including policies and procedures and information, relating to this Agreement, available to Aradia Fitness for the purposes of Aradia Fitness determining your compliance with the obligation to secure consent for your clients to receive marketing messages and other communications (email, text, or other). Such information shall be made available in a time and manner reasonably requested by Aradia Fitness.
29. Listing Services; Aradia Fitness Directory
Aradia Fitness may offer a complimentary listing service (the “Listing Service”) under which your business information and client reviews (collectively, the “Business Information”) are submitted to search engines, indexes and web sites, as well as to the Aradia Fitness service referred to as the “Aradia Fitness Directory.” You agree to participate in the Listing Service and allow Aradia Fitness to make this data available and provide registration services to the Aradia Fitness Directory and third-party sites. It is up to third party sites to accept the submissions, and Aradia Fitness makes no warranty as to such sites’ willingness to do so. For so long as Customer continues to subscribe to the Software Service, Aradia Fitness will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Listing Service. We have no control of third-party websites or resources that are provided by companies or persons other than that of Aradia Fitness. Additional tools may be available from the third parties to provide additional updates to your information, but if you use such services, Aradia Fitness is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. Aradia Fitness may terminate your participation in the Listing Service, or this Agreement, at any time if Aradia Fitness determines that you are not in compliance with this Agreement. Upon termination of this Agreement by either party, the Business Information and any consumer reviews may remain in any data feeds provided to third parties under the Listing Service but is subject to removal at any time as determined by Aradia Fitness. You may request explicit removal of the Business Information from such data feeds in writing, however Aradia Fitness takes no responsibility in obtaining the removal thereof. Upon request at any time up to 30 days following termination of this agreement, Aradia Fitness will provide you with an electronic copy of your Business Information, including consumer reviews, for which it has control over.
30. Governing Law; Venue; Waiver of Class Action
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the Province of Ontario, without reference to its choice of law principles to the contrary. You will not commence or prosecute any action, suit, proceeding, or claim arising under or by reason of this Agreement other than in the Provincial Courts located in Alberta, Canada. The Customer irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement. To the extent permitted by applicable law, each party agrees that it will not bring or participate in any class action against the other party or its partners or affiliates relating to this Agreement or the Software Services, and each party hereby waives any rights to bring such claims.
If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective. This Agreement will bind and inure to the transferee of a party’s business and will be enforceable in the event of a change in ownership or control. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. This Agreement is not intended to confer any right or benefit on any third party, and no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement. No amendments or modifications will be effective unless in writing signed by authorized representatives of both parties.
32. Force Majeure
Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of fees due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Aradia Fitness’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.
The following sections apply only if you are subject to the HIPAA Security and Privacy Rule.
33. HIPAA and Laws
In accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended (“HIPAA”), you agree to follow and abide to the following:
- Ensuring that your use of the Software Service complies with applicable law, including but not limited to laws relating to maintenance of privacy, security, and confidentiality of patient and other health information.
- Implement and maintain appropriate administrative, physical, and technical safeguards to protect information within the Software Service.
- Such safeguards must comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule.
- Maintain appropriate security regarding all personnel, systems, and administrative processes used by you or members of your workforce to transmit, store and process electronic health information using the Software Service.
Aradia Fitness is committed to maintaining the confidentiality of information entrusted to us, especially individually identifiable personal and health information. Aradia Fitness follows its HIPAA policies and procedures. You are responsible for determining if the Software Service meets your compliance standards.
34. Uptime Commitment
Aradia Fitness will make the Software Service available to you on a twenty-four hour, seven days a week (24×7) basis at a rate of 99.9% (“Guaranteed Uptime”). Calculation of the Guaranteed Uptime will begin on the date you first access the Software Service with a paid subscription (“Start Date”) and will be measured over each consecutive twelve (12) month period ending on the anniversary of the Start Date (each, a “Service Period”). The Guaranteed Uptime will be calculated excluding downtime or performance issues caused by any of the following:
- Scheduled maintenance for which we give you at least twenty-four (24) hours’ prior notice
- Force majeure event (as described in the Agreement)
- Overall Internet congestion, slowdown, or unavailability
- Suspension or termination of Software Service by Aradia Fitness pursuant to the Agreement
- Your equipment or third-party telecommunications, computer hardware, software, or network infrastructure not within the sole control of Aradia Fitness
If the Software Service fails to meet the Guaranteed Uptime during a Service Period, as your sole and exclusive remedy, you may receive up to One (1) free month of Software Service credit to your account. If you believe the Guaranteed Uptime has not been met in a Service Period, in order to receive an account credit you must send a request via email to firstname.lastname@example.org no later than thirty (30) days after the end of the applicable Service Period. The email must include dates, times, and descriptions of each instance of downtime, and any supporting calculations.
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com