Waxing the City® Dashboard Terms and Conditions
The Waxing the City® Dashboard Terms and Conditions ( “Agreement“) is an agreement between Waxing the City Worldwide, LLC (“Anytime Fitness,” “we,” “us,” or “our”) and you, individually, (“you“) and contains the terms and conditions that govern your access to and use of the Anytime Fitness® Dashboard at http://dashboard.waxingthecity.com/ and the content and materials available on the Dashboard (collectively, the “Services”). This Agreement applies to your access to and use of the Services and does not alter the terms and conditions of any other agreement you may have with Anytime Fitness.
This Agreement takes effect when you click a “Login” or “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services (the “Effective Date“). You represent to us that you are lawfully able to enter into contracts.
1.1. Grant. Subject to the terms of this Agreement, we hereby grant you a limited, revocable, non-exclusive, non-sublicensable, and non-transferrable license to have access to and use the Services solely in connection with, and within the scope and purpose of, your business relationship with Waxing the City or a Waxing the City® studio.
1.2. Confidentiality. The Services are the confidential and proprietary information of Waxing the City (the “Waxing the City Information”). You may use the Waxing the City Information only in connection with your use of the Services as permitted under this Agreement. You will not disclose Waxing the City Information during or after the term of this Agreement. You will take all reasonable measures necessary to avoid disclosure, dissemination or unauthorized use of Waxing the City Information. When this Agreement terminates, you can no longer use the Waxing the City Information.
1.3. Additional Restrictions. You may not, and may not permit any third party to, use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. You may not, or may not attempt to, and may not permit any third party to: (a) modify, alter, tamper with, copy, translate, or otherwise create derivative works of the Services; (b) reverse engineer, disassemble, or decompile the Services or otherwise attempt to derive the source code of any software included in the Services; (c) resell or sublicense the Services; (d) use the Services to develop any software or other technology having the same primary function as the Services; (e) use the Services in a manner that interferes with other users' use of the Services; or (f) use the Services in any manner that violates our Policies. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
1.4. Reserved Rights. We own and reserve all right, title, and interest in and to the Services. This Agreement does not grant you any rights in or to the Services except for the limited rights to use the Services expressly granted by this Agreement. We may change or remove features or functionality of the Services at any time.
2. Your Account. YOU ARE RESPONSIBLE FOR ALL USE AND ACTIVITIES ASSOCIATED WITH OR ARISING FROM ANY USE OF YOUR ACCOUNT. WE AND OUR AFFILIATES ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR ACCOUNT. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You will be deemed to have taken any action that occurs under your account. You agree to keep your password secret and not to share it with anyone except as may be expressly allowed under this Agreement.
4.1. Term. This Agreement shall commence on the Effective Date and will continue thereafter until terminated as set forth in this Agreement.
4.2. Suspension. We may suspend your right to access or use any portion or all of the Services immediately upon notice to you if we determine: (a) your use of the Services may subject us, our affiliates, or any third party to liability or may adversely impact the Services or the systems of Waxing the City; or (b) you are in breach of this Agreement or any other agreement you may have with Waxing the City. Our right to suspend your right to access or use the Services is in addition to our right to terminate this Agreement pursuant to Section 4.3.
4.3. Termination. This Agreement automatically terminates at the time your business relationship with Waxing the City or an Waxing the City® studio terminates. In addition, we may also terminate this Agreement immediately, without notice or liability, if we determine in our sole discretion that: (i) you have breached any portion of this Agreement or any other agreement you may have with Waxing the City; (ii) your use of or access to the Services inhibits any other user from using or accessing the Service; or (iii) the Services will no longer be offered. We may also terminate this Agreement at any time and for any reason by providing you notice.
4.4. Effect of Termination. Upon termination of this Agreement, your rights to use the Services and the Waxing the City Information immediately terminate.
5. Warranty Disclaimers.
THE SERVICES ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
6. Limitations of Liability.
IN NO EVENT SHALL EITHER ANYTIME FITNESS OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES OR THE AGREEEMENT, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WHATSOEVER SHALL ANYTIME FITNESS’S, ITS AFFILIATES’ OR LICENSORS’ AGGREGATE LIABILITY RESULTING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.
7. Indemnification. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of ours and their respective employees, officers, directors, and representatives from and against any claims, demands, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your use of the Services (including any activities under your account); or (b) your breach of this Agreement or violation of applicable law. We will promptly notify you of any claim subject to this Section 7, but our failure to promptly notify you will only affect your obligations under this Section 7 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim with our prior written consent before entering into any settlement. However, we may also assume control of the defense and settlement of the claim at any time.
8. Modifications to the Agreement. We may modify this Agreement at any time by posting a revised version on the Waxing the City Dashboard website or by providing notice to you as set forth in this Agreement. The modified terms will become effective upon posting. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.
9. Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
10. Notices. All communications and notices to be made or given pursuant to this Agreement must be in the English language. We may provide any notice to you under this Agreement by means of posting a general notice on our website or by sending a message to the email address then-associated with your account. Notices we provide by posting on our website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then-associated with your account when we send the email, whether or not you actually receive the email. You may give notice to us at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the following address: Waxing the City Worldwide, LLC, 12181 Margo Avenue South, Hastings, MN 55033 USA. Notice to us shall be deemed given when received by us.
11. Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
12. No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13. Relationship of the Parties. The parties to this Agreement are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
14. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
15. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Minnesota, without giving effect to its conflicts of law principles. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree and consent to the exclusive jurisdiction of, and venue in, the federal and state courts in the State of Minnesota.
16. Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control. This Agreement has been prepared in English, and English is the controlling language with respect to all matters concerning this Agreement.
4828-4563-0747, v. 1