FMG Rules

Welcome to FillMyGym. The following terms and conditions (the “Agreement”) form a binding agreement between you, the individual purchasing the product or service, the individual or company providing the product or service, and Motionsoft, Inc. the coordinator of the FillMyGym website, currently located on “the Circuit” portion of www.motionsoft.net which is sometimes referred to as “FillMyGym,” “Motionsoft”,”we,” “us” or “our.” Please review the following terms carefully. By using the Site or any Motionsoft Services, you are agreeing to these terms, and all of these terms will govern your use of the Site and our Services. If you do not agree to these terms, you must cease use of the Site and our Services. The term “you” refers to the person accessing or using the Site or our Services, or the company or organization on whose behalf that person accesses the Site or our Services.

Our Services

FillMyGym is an online group buying opportunity created by Motionsoft, Inc. for people in the fitness industry and health and wellness related businesses. It is NOT currently a for-profit venture. It is created in good faith to help products and service providers in the health and wellness industry connect with potential users of these products and services.

While Motionsoft selects companies that its representatives deem reliable, honest and operating with integrity, Motionsoft makes no absolute claim of the products and services being offered and assumes no liability or responsibility whatsoever for any transactions, purchases, promises or exchanges that take place from the Fill My Gym program.

Conditional Use of Our Site and Services

Your permission to use FillMyGym is conditioned upon your agreement that you:

• are 18 years of age or older and are a current employee (full or part-time), manager, contractor, owner or representative of a gym or fitness related facility or business;
• will comply with these Terms of Service;
• will not copy or distribute any part of FillMyGym in any medium without FillMyGym’s prior written authorization;
• will provide accurate information when opting into a deal by clicking the “Buy Now” button.
• will not use FillMyGym to collect any personally identifiable information, including account names, email addresses, or other such information, for commercial purposes;
• will not use the communication systems provided by or contacts made on FillMyGym for any commercial solicitation purposes;
• are solely responsible for your Content submissions, including discussion posts, profile information and links, pictures, and other such content;
• represent that you own or have the necessary licenses, rights, permissions, and consents to use and authorize FillMyGym to use any and all Content submitted by you to FillMyGym in accordance with the licenses granted in this Agreement;
• hereby grant each FillMyGym user, whether using FillMyGym or an application authorized by FillMyGym but developed via a third-party developer, a non-exclusive license to access the Content you submit through FillMyGym and to use, reproduce, distribute, prepare derivative works of, display and perform such Content as permitted through FillMyGym’s functionality and under these Terms of Service;
• will not submit Content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such Content to FillMyGym; and
• hereby affirm we have the right to determine whether any of your Content submissions are appropriate and comply with these Terms of Service, remove any and/or all of your submissions, and terminate your account with or without prior notice.

Non-Confidentiality, Security and Privacy

You understand that information, such as credit card information provided in connection with the purchase of a Deal, is maintained by the company or individual providing the service or product with appropriate privacy and security protections, and is not the responsibility of Motionsoft, Inc or its representative.

Our Privacy Policy explains how we collect, use and disclose information that pertains to your privacy. The Privacy Policy forms part of our agreement with you and is incorporated in this Agreement by reference.

Any communications between you and FillMyGym, such as email or other correspondence, in which you offer suggestions or comments for improving or modifying our Services will be deemed by us to be non-confidential and non-proprietary, and you agree that such information may be used by us without any limitation whatsoever.

Rules Regarding Information and other Content

When you use the Site, you can publish and obtain access to various kinds of information and materials, all of which we call “Content.” Content also includes information and materials posted to the Site by you. You agree not to revise or obscure Content posted by others (including advertising and promotions authorized by FillMyGym), and you agree not to post or use any Content in any manner that:

• infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others,
• violates the privacy, publicity, or other rights of third parties,
• is unlawful, defamatory, discriminatory, libelous, pornographic, obscene, abusive, threatening, harassing, pornographic, hateful, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate, as determined by FillMyGym in its sole discretion,
• is false or inaccurate, or
• could damage our company, parent company, sister companies, affiliates, advertisers, or other parties.

Though we strive to enforce these rules with all of our users, you may be exposed through the Site or Services to Content that violates our policies or is otherwise offensive. You may use the Site and Services at your own risk. We may, but are not obligated to, terminate offers and/or remove Content from the Site if we determine or suspect that those accounts or Content violate the terms of this Agreement or the applicable agreement with the offending user(s). We take no responsibility for your exposure to Content on the Site whether it violates our content policies or not.

General Rules of User Conduct

It is our goal to make the use of our Site and Services a good experience for all of our users, so you agree not to do any of the following:

• conduct or promote any illegal activities while using the Site or Services;
• upload, distribute or print anything that may be harmful to minors;
• attempt to reverse engineer or jeopardize the correct functioning of the Site or Services, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
• attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
• upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
• use the Site or Services to generate unsolicited email advertisements or spam;
• use any automatic or manual process to search or harvest information from the Site or Services, or to interfere in any way with the proper functioning of the Site and Services; or
• impersonate another user.

Links to Third Party Sites

We don’t have control over websites that FillMyGym may link to. FillMyGym may contain links to third party websites that are not owned, operated, or controlled by FillMyGym. Therefore, we cannot and do not assume responsibility for the content, privacy policies, or practices of such websites or the companies that own them. Additionally, we cannot and will not censor or edit the content of any third party site. By using FillMyGym you expressly relieve us from any and all liability arising from your use of any third party website.

Deals

FillMyGym provides consumers with opportunities to purchase products and services from third party merchants (“Merchants”) with a time limited promotional added value (a “Deal”). Merchants are willing to offer attractive promotionals in order to reach the FillMyGym community.

1. How It Works

By pressing “buy now” for a given Deal, you make an offer to purchase the Deal you have selected on the terms, restrictions and conditions associated with the Deal. Once you’ve placed your order, you will received a confirmation of the Deal. The individual or company offering the deal will be in touch with you within the next 5 days to make arrangements for your purchase of the product or service whether for scheduling, shipping or other matters.

2. Financial transactions

All financial transactions, payments and receipt of services or products are the responsibility of the provider and the individual “buying” the product or service. Motionsoft currently has no part of any of the financial transaction and receives no compensation or portion of the payment. Motionsoft and FillMyGym are completely removed of liability for financial problems.

3. Expiration Dates

The expiration date of the offer, and any date to redeem by, will be listed on the offer.

4. Deal Specific Terms

Each Deal has specific terms associated with the Deal, which will be presented to you at the time you commit to purchase the particular Deal. Deal specific terms supersede any inconsistent terms in this Agreement, except to the extent such terms are prohibited by applicable law.

5. Global Terms

Unless otherwise stated on the website or required by law, the following additional terms apply to all deals:

• no cash value for any deal,
• no cash back will be issued for partial redemption of the paid portion of a deal, except as required by law,
• no cash back or credit will be issued for partial redemption of the promotional portion of a deal,
• Deals cannot be combined with any other coupons or promotions unless otherwise noted in the deal,
• neither FillMyGym nor the Merchant is responsible for lost or stolen agreements or email confirmations.
• duplicate use, sale or trade of a deal is prohibited, except as required by law,
• unless otherwise stated at the time a deal is purchased, the deal price does not include sales, value added or use taxes, which may be charged to you separately by the Merchant at the time you redeem the deal.

6. Merchant Responsibility

To be clear, FillMyGym markets the Deals but currently does not act as an agent in selling on behalf of the Merchants. As issuer of the “Deal”, the Merchant shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Merchant or its products and services, as well as for any unclaimed property liability arising from unredeemed deals.

7. Promotions of the Deal Program

From time to time we may offer special promotions, contests and/or sweepstakes intended to provide you an incentive to purchase Deals or to encourage you to get others to do so. The applicable rules will be posted on the Site in or near the description of each such promotion. We reserve the right to interpret these rules in our sole discretion, and you hereby agree to our interpretation.

8. Products Available for Sale

The Site can be accessed from countries around the world. You understand that some or all products or services provided on the Site may not be available for purchase to persons residing in certain jurisdictions or geographic areas. FillMyGym reserves the right, in its sole discretion, to exclude or otherwise limit the provision of an offerfor any product or service to a person residing in any jurisdiction or geographical area. FillMyGym does not represent or warrant that any product or service promoted on the Site will be available for purchase by any particular person.

9. Refunds

FillMyGym will assume no liability for any products or services acquired through the FillMyGym program no provide any refunds.

Termination

We may change or discontinue the Site or any of the Services at any time without prior notice. We reserve the right to terminate this Agreement at our election and for any reason, without prior notice, and this Agreement will automatically terminate in the event that you violate any of the terms and conditions set forth below. In the event of any termination, you will immediately cease access to the Site and Services. Any Voucher issued prior to termination will be honored according to its terms and the terms of this Agreement specifically applicable to such Voucher.

Disclaimers of Warranty

We provide the Site and Services “as is”, “with all faults” and “as available.” We and our suppliers and Merchants make no express warranties or guarantees about the Site, Services or Deals. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR OFFICERS, DIRECTORS, AGENTS, VENDORS, AND MERCHANTS DISCLAIM IMPLIED WARRANTIES THAT THE SITE AND SERIVCES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT FILLMYGYM WILL MEET YOUR REQUIREMENTS, IS ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF FILLMYGYM, INCLUDING ANY SERVICES OR DEALS, WILL BE EFFECTIVE, RELIABLE, ACCURATE OR MEET YOUR REQUIREMENTS. WE MAKE NO WARRANTIES AS TO PRIVACY AND SECURITY OTHER THAN AS EXPRESSLY STATED IN THE PRIVACY POLICY. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE OR SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A FILLMYGYM REPRESENTATIVE SHALL CREATE A WARRANTY. You may have additional consumer rights under your local laws that this contract cannot change.

Limitations of Liability

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO DISCONTINUE YOUR USE OF FILLMYGYM. IN NO EVENT SHALL OUR LIABILITY, OR THE LIABILITY OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, OR MERCHANTS, FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SITE AND SERVICES . WE, OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, AND MERCHANTS, SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, INABILITY TO USE, OR RELIANCE UPON THE SITE AND SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTION, OUR LIABILITY, AND THE LIABILITY OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, AND MERCHANTS, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

Indemnity

You agree to defend, indemnify and hold harmless FillMyGym, its parent company, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) your use of and access to FillMyGym; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that any Content submitted by you causes damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of FillMyGym.

Reservation of Rights and Release

FillMyGym reserves the right, but has no obligation, to monitor, or take any action FillMyGym deems appropriate regarding disputes that you may have with other customers of ours or any Merchants. To the extent the law permits, you release us from any claims or liability related to any Content posted on the Site and from any claims related to the conduct of any other customers of ours or any Merchants. You hereby waive California Civil Code Section 1542 (if you are a California resident), and any similar provision in any other jurisdiction (if you are a resident of such jurisdiction), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

Intellectual Property

You acknowledge and agree that we and our licensors retain ownership of all intellectual property rights of any kind related to the Site and Services, including applicable copyrights, trademarks and other proprietary rights. We are not granting any license to you under any of those intellectual property rights by virtue of this Agreement, except for the limited right to use the Site and Services in accordance with this Agreement. “FillMyGym” is our trademark. Other product and company names that are mentioned on the Site or provided as part of the Services may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you in this Agreement.

The Content on FillMyGym, excluding all intellectual property of other sites obtained by way of API and linking and Content posted by our customers, is owned by FillMyGym. This includes, without limitation, the text, software, scripts, graphics, photos, sounds, interactive features and the trademarks, service marks and logos contained therein (“Marks”). The Marks are owned or licensed to FillMyGym, subject to copyright and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and and international conventions. Content provided by FillMyGym is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, modified, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. We reserve all rights not expressly granted in and to the Site and Services.

As between you and us, you retain any intellectual property rights in any copyrighted materials and trademarks that are contained in Content that you post to the Site. You grant us an irrevocable, perpetual, non-exclusive, royalty-free, fully paid, worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, translate, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale, otherwise commercially exploit and exercise any and all such rights, under any and all of your intellectual property rights related to the Content in any manner we choose. If you have any rights to the Content that cannot be licensed to us (such as moral rights in some countries), you unconditionally and irrevocably waive the enforcement of such rights, and all claims and causes of action of any kind against us or related to our customers and partners anywhere in the world, with respect to such rights.

Copyright Notice

We respect the intellectual property of others, and we ask you to do the same. If you are a copyright owner or an owner’s agent and find Content that infringes upon your copyrights, you may submit a notification according to the Digital Millennium Copyright Act. To do so, please provide our Copyright Agent with the following information (see 17 U.S.C 512(c)(3) for further detail) in writing: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (4) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. FillMyGym’s designated Copyright Agent to receive notifications of claimed infringement can be reached at hnoshirvani@motionsoft.net. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

Electronic Communications

The communications between you and FillMyGym use electronic means, whether you visit the Site or send us emails, or whether FillMyGym posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from FillMyGym in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that FillMyGym provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.

Entire Agreement, Changes to this Agreement and Waivers

These Terms of Service, and any other legal notices published by FillMyGym on the Site or any Deal Voucher, shall constitute the entire agreement between you and FillMyGym concerning FillMyGym. We may change the terms of this Agreement from time to time on a going-forward basis, and any such modifications become effective immediately upon being posted to the Site. It is your sole responsibility to check the Site from time to time to view any such changes in the Agreement. If you do not agree to any changes, if and when such changes may be made to the Agreement, you must cease use of the Site and Services. Your use of the Site and Services after any modifications to the Agreement indicates that you agree to such modified Agreement. Any changes to this Agreement (other than as set forth in this paragraph) or waiver of FillMyGym’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of FillMyGym. No purported waiver or modification of this Agreement by FillMyGym via telephonic or email communications shall be valid.

General Terms

You and we are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid. Should any part of this Agreement be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of this Agreement will not be considered a waiver of the right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.

YOU AND FILLMYGYM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO FILLMYGYM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

You represent that you are legally able to accept these Terms of Service. You affirm that you are either more than 18 years of age, are employed by or are professionally affiliated with the health and wellness industry (not as a member of a facility) and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. And as stated in the Conditional Use of Our Site and Service, above, you affirm that you are, in any case, 18 years of age or older. If you aren’t, you must please cease use of FillMyGym.

The parties hereto confirm their express wish that this Agreement and all documents and agreements directly or indirectly relating thereto be drawn up in the English language.

Last updated: November 8, 2010