Please read the following terms and conditions very carefully as your use of this website http://fitmonk.co.in/ and the FitMonk application available on the Google Play and iOS store (“Online Portal”) is subject to your acceptance of and compliance with the following terms and conditions, as updated from time to time (“Terms”). Your continued use and access of the Online Portal indicates that you have read, understood and accepted the terms. If you do not want to be bound by the terms you agree to discontinue your use of the Online Portal.
- “FitMonk” refers to the company Endorphins e-Services Private Limited having its registered office at C1, Chartered Rathna, Rathna Avenue, 51 Richmond Road, Bangalore – 560025 and represented through the brand name FitMonk and owning the Online Portal.
- “Fitness Centre(s)” or “FC(s)” means the fitness centres, whether it’s a gym, workout studio, sports centre or other such facility, registered with FitMonk and whose access passes (currently hourly, daily passes and membership packages) are made available on its Online Portal for the provision of fitness, workout or sports services.
- “Users” shall mean all persons accessing the Online Portal, whether or not registered with FitMonk.
- These Terms govern the use of the Online Portal. Use of the Online Portal is conditioned upon your acceptance without modification, of all the Terms.
- FitMonk hereby reserves the right to modify, amend or supplement the Terms by posting new Terms on the Online Portal. Posting of the new Terms on the Online Portal shall constitute effective notice to you. You hereby agree to check the latest Terms available on the Online Portal from time to time and agree to discontinue your use of the Online Portal if the Terms are not agreeable to you.
- If you choose to register with us on our mobile application, you will receive a username and password upon completing the login/ registration process. If you login through Facebook or Google, your existing login details will continue to apply. Your username, password, and other profile details collected by the Online Portal during your registration shall constitute your account on the Online Portal (“Account”). You are responsible for maintaining the confidentiality of the password of your Account, and you are fully responsible for all activities that occur from your Account. You agree to immediately notify FitMonk at email@example.com of any unauthorized use of your Account or any other breach of security. You hereby acknowledge and agree that FitMonk shall not be liable for any loss or damage suffered by you arising from your failure to comply with this Clause 2.3.
- The Online Portal offers a variety of services to its Users and these inter alia include provision of a discussion fora where the Users can post their comments, interact with each other and rate centres at which they have booked a work out session. The Users agree that Fitmonk reserves the sole right to modify the nature of services offered on the Online Portal at any point in time.
- Fitmonk further reserves the right to restrict access to some portions or features of the Online Portal, without prior notice to you.
4. Conduct by the User
- You agree and undertake to use the Online Portal appropriately. By way of example, and not as a limitation, you agree and undertake that when using the Online Portal, you will not:
a. publish, post, upload, distribute or disseminate (collectively “Post”) any material which is knowingly false and/or defamatory, inaccurate, abusive, obscene, indecent, vulgar, sexually-oriented, hateful, threatening, profane, lewd, seditious, invasive of a person’s privacy, or otherwise violative of any law;
b. abuse, harass, stalk, or otherwise violate the legal rights of other Users;
c. Post files that contain material protected by intellectual property laws unless you own or control the rights thereto or have received all necessary consents to Post the same;
d. Post files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Online Portal or another User’s computer;
e. conduct or forward surveys, contests, pyramid schemes or chain letters on the Online Portal;
f. download any file Posted by another User that you know, or reasonably should know, cannot be legally distributed in such manner;
g. violate any applicable laws or regulations for the time being in force in India or in a country of your residence or temporary stay;
h. make the Online Portal available over a network where it could be used by multiple devices or multiple users at the same time without undergoing the registration process of the FitMonk application on the Online Portal;
i. initiate any legal proceeding against any other User. Further, you recognise that your sole remedies against any other User shall be to disassociate yourself from that User on the Online Portal or cease usage of the Online Portal or approach the grievance redressal mechanism available on the Online Portal; You guarantee, warrant, and certify that you are the owner of the content which you Post on the Online Portal (“Content”) or are otherwise authorised to use the Content and that the Content does not infringe upon the property rights, intellectual property rights or other rights of any other person. You further warrant that to your knowledge, no action, suit, proceeding, or investigation has been instituted or threatened relating to any Content, including trademark, trade name service mark, and copyright formerly or currently used by you in connection with the Content.
j. misrepresent the source, identity, or content of information transmitted via the Online Portal, including deleting the copyright or other proprietary rights;
k. upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others;
l. harass, threaten, or defraud users, members or staff of FitMonk or FCs;
m. make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users;
n. impersonate another person or access another User’s account without that person’s permission;
o. share FitMonk-issued passwords with any third party or encourage any other user to do so;
p. permit third parties to use any workout sessions/ memberships booked under your name; or
q. cancel any FitMonk workout session/ membership directly with a FC, rather than through the FitMonk Online Portal.
5. Disclaimers and limitation of liability of Fitmonk
- Although the administrators and moderators of Fitmonk will attempt to keep the Online Portal free from all objectionable messages, you agree and acknowledge that it is impossible for Fitmonk to review all content on the Online Portal. All content express the views of the respective User who Posted such content and not those of Fitmonk, and any errors or omissions in such content is attributable to the respective User. Any User who is of the opinion that specific content on the Online Portal is objectionable, is encouraged to contact Fitmonk immediately by sending an email to firstname.lastname@example.org. Notwithstanding the foregoing, Fitmonk shall not be obliged to remove such objectionable content from the Online Portal.
- Fitmonk does not vouch for or endorse or warrant the accuracy, completeness or usefulness of any content on the Online Portal. You understand and agree that any material and/or data downloaded or otherwise obtained by you from the Online Portal is done entirely at your own discretion and risk and you will be solely responsible for any damage to your computer systems or loss of data that results from the download of such material and/or data from the Online Portal. You hereby acknowledge and agree that Fitmonk, its employees, directors, shareholders or representatives will not be held responsible for any content on the Online Portal. You hereby agree to hold harmless Fitmonk employees, directors, shareholders or representatives against any and all claims related to the opinions expressed by Users.
- The Online Portal may contain links to other websites or portals (“Embedded Online Portals“). The Embedded Online Portals are not under the control of Fitmonk and Fitmonk is not responsible for the contents of any Embedded Online Portal, including without limitation any link contained in an Embedded Online Portal, or any changes or updates to an Embedded Online Portal. Fitmonk is not responsible for any form of transmission, whatsoever, received by you from any Embedded Online Portal. Fitmonk is providing these links or allowing Users to provide you these links only as a convenience, and the inclusion of any link does not imply endorsement by Fitmonk of the Embedded Online Portals or of any information contained in the Embedded Online Portal or any association with the operators or owners of the Embedded Online Portal.
- Fitmonk neither warrants nor makes any representations regarding the quality, accuracy or completeness of any data, information, published on the Online Portal. In no event shall Fitmonk or its employees, directors, shareholders or representatives be liable for any direct, indirect, punitive, incidental, special, consequential damages or any other damages resulting from: (a) the use or the inability to use the Online Portal; (b) unauthorized access to or alteration of a User’s transmissions or data; (c) damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Online Portal; (d) any delay or inability to use the Online Portal or related services provided on the Online Portal; (e) non-availability of the Online Portal during periodic maintenance operations or any unplanned suspension of access to the Online Portal that may occur due to technical reasons or for any reason beyond Fitmonk’s control; (f) any other matter relating to the Online Portal or the services available on the Online Portal, or otherwise arising out of the use of the Online Portal, whether based on contract, tort, negligence, strict liability or otherwise.
6. Regulatory Power of the Fitmonk
- Fitmonk reserves the right to delete, edit or move any content Posted on the Online Portal for any reason whatsoever.
- Fitmonk, at its sole discretion, reserves the right to reject a User from registering on the Online Portal without assigning any reason thereof. Fitmonk also reserves the right to suspend/cancel/deactivate any User’s Account for any reason which Fitmonk shall deem fit, at its sole discretion.
- You hereby expressly agree and consent to the collection of your personal data by Fitmonk. You hereby agree that Fitmonk or its agents, may collect, maintain and process personal data about you, your usage of the Online Portal and related information, that is gathered periodically to facilitate your operation of the Online Portal and to verify your compliance with the Terms.
- You hereby expressly consent and agree to Fitmonk sharing your personal information (collected during the registration process or from your Google or Facebook account (when you login through these accounts)) with third parties in the following manner: a) Our payment gateway provider for processing of the online payments for sessions booked by the User; b) fitness, sports and other centres whose services are offered on our Online Portal, c) our technology team that is developing or maintaining our Online Portal and as set out in Clause 7.4 below, and d) law enforcement, courts or other authorities who seek such information under due process of law. You further expressly consent and agree to Fitmonk sharing generic information assimilated from you and other Users of the Online Portal, with third parties, including but not limited to polling organizations, research organizations, advertising agencies or commercial entities.
- If Fitmonk is required to intercept, disclose, monitor and/or store your personal information: (a) by law; (b) for the purpose of effectively managing the Online Portal; (c) to secure the systems of the Online Portal; or (d) to enforce Fitmonk’s rights, Fitmonk will do so in the manner as prescribed by law. You hereby agree that such interception, disclosure, monitoring and storage may take place without your knowledge and Fitmonk will not be liable to you or any third party for any damages howsoever arising from such interception, disclosure, monitoring and storage. To ensure that the security and integrity of the Online Portal is safeguarded, Fitmonk may monitor your personal information. This monitoring may include (without limitation) the filtering of incoming and outgoing electronic data messages to identify, limit and/or prevent the transmission of spam, viruses and/or unlawful, defamatory, obscene or otherwise undesirable material or content. Fitmonk may under certain circumstances engage a third party service provider for the purpose of managing the technical operations involved in hosting the Online Portal. To the extent that it may be necessary, and solely for the purposes of providing the service available on the Online Portal to you, you agree that we may disclose to such third party any of your personal information that may be necessary for the procurement of services from the third party.
- You hereby authorise Fitmonk, the fitness, sports and other centres whose services are offered on our Online Portal, to send text messages to you via SMS or whatsapp or other messaging system and emails in relation to your usage of the Fitmonk services.
- You agree to indemnify, defend and hold harmless Fitmonk from and against any and all losses, liabilities, claims, damages, costs and expenses (including legal fees and disbursements in connection therewith and interest chargeable thereon) asserted against or incurred by Fitmonk that arise out of, result from, or may be payable by virtue of, any breach or non-performance of any representation, warranty, covenant or obligation to be performed by you pursuant to these Terms.
- You agree to indemnify and hold FitMonk, its affiliated companies, and its suppliers, FCs and partners harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your misuse of the Online Portal, violation of these Terms, violation of the rights of any other person or entity (including a FC), or any breach of the foregoing representations, warranties, and covenants.
9. Ownership; Proprietary Rights
- The FitMonk Online Portal is owned and operated by FitMonk. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Online Portal provided by FitMonk (“Materials”) are protected by the copyright, trade dress, patent, and trademark laws of India, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content uploaded by you, all Materials contained on the Online Portal are the copyrighted property of FitMonk and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to FitMonk or its affiliates and/or third-party licensors. Except as expressly authorized by FitMonk, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
10. Disclaimers; No Warranties
- WORKOUT SESSIONS, MEMBERSHIPS, ACTIVITIES, AND OTHER NON-FITMONK PRODUCTS AND SERVICES OFFERED VIA THE ONLINE PORTAL ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT FITMONK. YOUR ATTENDANCE AT AND PARTICIPATION IN THESE WORKOUT SESSIONS, MEMBERSHIPS, ACTIVITIES, AND YOUR USE OF THESE NON-FITMONK PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL FITMONK BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A WORKOUT SESSION, MEMBERSHIP, ACTIVITY, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE ONLINE PORTAL, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. FITMONK IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.
- THE ONLINE PORTAL AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ONLINE PORTAL ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FITMONK, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
- WITHOUT LIMITING THE FOREGOING, FITMONK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE ONLINE PORTAL AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ONLINE PORTAL WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ONLINE PORTAL AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ONLINE PORTAL OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE ONLINE PORTAL AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ONLINE PORTAL IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE ONLINE PORTAL IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
11. Waiver and Release
- You understand that FitMonk is not a gym or fitness studio or other service provider and the workout sessions/ memberships you take or services you use are operated and delivered by the applicable FC and not by FitMonk. Although FitMonk endeavors to offer inventory that is of high quality, FitMonk is not responsible for the quality of any workout session/ membership or service. You understand that there are certain inherent risks and dangers in exercising and that the workout sessions/ memberships you may attend offer a range of activity and intensity level. By signing up for a FitMonk membership, you acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or assigns that you are aware of these risks, which include, but are not limited to, property damage, illness and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You acknowledge and agree that it is your responsibility to consult with your primary care physician prior to participating and to determine if and how participating in any workout session/ membership or service is appropriate for you. You also understand and agree that the Online Portal offers health and fitness information that is designed for educational and entertainment purposes only and the use of any of the information provided on the Online Portal is solely at your own risk.
- Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless FitMonk, its affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses, damages and liabilities arising out of or in any way related to your participation in or use of your FitMonk membership, including with respect to bodily injury, physical harm, illness, death or property damage.
12. Limitation of Liability and Damages
- UNDER NO CIRCUMSTANCES WILL FITMONK OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, FCS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF FITMONK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, FITMONK’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- FITMONK’ LIABILITY TO YOU IS LIMITED TO RS. 1000 OR THE AMOUNTS, IF ANY, PAID BY YOU TO FITMONK UNDER THIS AGREEMENT IN THE ONE MONTH IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER FITMONK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. FC Waivers And Terms
- Members taking workout sessions/ memberships or attending a gym are deemed to agree to the liability waivers of individual FCs. Your participation in any workout session/ membership or service may be subject to additional policies, rules or conditions of the applicable FC and you understand and agree that you may not be permitted to reserve or attend workout sessions/ memberships at a particular FC if you do not comply with these Terms or the policies of such FC. If you have questions about a FC’s waiver or other terms, please see the applicable FC’s website or contact the FC directly.
- These Terms are effective until terminated. Your rights under these Terms shall terminate automatically or otherwise cease to be effective without notice from FitMonk, if you fail to comply with any provision of the Terms. These terms may be terminated upon specific notice provided by FitMonk to you. Upon termination of these Terms, you shall cease to access and use the Online Portal. Clauses 5, 8, 10, 11, 12, 13 and 15 shall survive the termination of these Terms.
- Governing Law: You agree that this agreement shall be governed by and construed in accordance with the laws of India. Subject to Clause 15.2 below, the courts at Bangalore shall have exclusive jurisdiction.
- Any dispute, difference, claim or controversy arising out of or in connection with these Terms (including a dispute regarding the existence, validity or termination of this agreement (including, without limitation, this Clause 15.2)) or the performance of any obligation hereunder, may be referred by FitMonk or you, by notice in writing to the other party, to an arbitral tribunal to be appointed in accordance with the Arbitration and Conciliation Act, 1996. The venue for arbitration shall be at Bangalore and the language used in the arbitral proceedings shall be English. The arbitration award shall be final and binding on you and FitMonk and shall be enforceable in any court of competent jurisdiction, and you agree to be bound thereby and to act accordingly.