END USER LICENSE AGREEMENT

Last updated October, 12, 2022

These FasCat Terms of Service form a binding agreement (the “Agreement”) between FasCat Digital Fitness, PBC (“FasCat,” “we,” “us,” or “our”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).

The FasCat digital fitness mobile application and online platform (“Platform”) provides users (“Users”) with the ability to access and view a variety of information, data, and content (“Content”) relating to training, health, and fitness.

The Content and additional services, functionality and resources provided through the Platform (“Services”) are made available solely under the terms of this Agreement. FasCat is willing to allow You to access and use the Platform and Content and Services only if you agree to be bound by this Agreement.

This Agreement is entered into between FasCat and You as of the earliest date You first access or use the Platform or any Content or Services (the “Effective Date”). This Agreement includes all terms and conditions below. This Agreement applies to the Platform and all Content and Services made available through the Platform. This Agreement is the complete and exclusive agreement between You and FasCat regarding Your access to and use of the Platform and all Content and Services. This Agreement supersedes any prior agreement or proposal, whether oral or written, and any other communications between You and FasCat relating to Your use of the Platform or any Content or Services.

PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, INCLUDING ANY CONTENT OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.

BY ENTERING INTO THIS AGREEMENT, YOU MAY BE WAIVING CERTAIN RIGHTS. IN PARTICULAR, THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION (TITLED “DISPUTES”), WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.

Definitions. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.

Term. The term of this Agreement begins on the Effective Date. If You have established a free subscription to the Platform (a “Free Subscription”), then the term of this Agreement will continue until terminated as provided in this Agreement. If You have established a paid subscription to the Platform (a “Paid Subscription”), then the term of this Agreement will continue for the initial period indicated when you establish your Paid Subscription. If no initial period is indicated when you establish your Paid Subscription, then the initial period of the term of this Agreement will be [1] year from the Effective Date. Following the initial period, the term of this Agreement will thereafter automatically renew for successive additional periods of equal length. Unless terminated as provided in this Agreement, the term of this Agreement will continue to renew until You notify FasCat that You do not wish to renew the Agreement prior to the end of the then-current period.

Modifications. FasCat reserves the right, at any time, to modify the Platform and any portion of the Content or Services, with or without notice to You, by making those modifications available on the Platform. FasCat also reserves the right, at any time, to modify the terms of this Agreement. FasCat will inform You of the presence of any changes to this Agreement by posting those changes on the Platform or by providing You with notice through the Platform. Any modifications will be effective [30] days following posting on the Platform or delivery of such notice through the Platform, except in the case of a modification required for FasCat or the Platform to comply with applicable Law or to comply with any applicable requirement placed on FasCat by a licensor or supplier, each of which will be effective upon posting. You may terminate this Agreement as set forth below if you object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Platform, Content or Services following such notice period.

Eligibility. The Platform and all Content and Services are intended for use by individuals [13] years of age and older. You represent that you are at least 13 years of age. If You are not 13 years of age or older, You may not under any circumstances access or use the Platform or any Content or Services. If You are 13 or older but younger than 18, then You may access and use the Platform only if Your parent or guardian accepts this Agreement on Your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then You agree You will be solely responsible for all access to and use of the Platform by Your child. If You are under 13, or do not meet the qualifications in this Agreement, please do not attempt to access or use the Platform. You agree not to allow any individual under 13 years of age to access or use the Platform, whether or not You are the parent or guardian of that individual.

Accounts.

Content Access Through Accounts. Subject to the terms of this Agreement, You may be permitted to access certain Content and Services through the Platform without establishing an account on the Platform (an “Account”). However, access to the Platform generally requires that You register as a User of the Platform and establish a User account on the Platform (an “Account”). Approval of Your request to establish and maintain any Account will be at the sole discretion of FasCat.

Your Account. Upon Your request, FasCat may provide You with the ability to establish an Account on the Platform. Your Account and the User identification and password for Your Account (Your “Account ID”) is personal in nature. Your Account is for Your personal use and Your User Account ID may be used only by You alone. You may not distribute or transfer Your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the Platform and all Content and Services through Your Account. You will ensure the security and confidentiality of Your Account ID and will notify FasCat immediately if Your Account ID is lost, stolen or otherwise compromised. You are fully responsible for all liabilities and damages incurred through the use of Your Account or under Your Account ID (whether lawful or unlawful) and any transactions completed through Your Account or under User Account ID will be deemed to have been lawfully completed by You.

Account Information. In connection with establishing Your Account, You will be asked to submit certain information about Yourself (“Account Information”). You agree that: (a) all Account Information You provide will be accurate, complete and current; and (b) You will maintain and promptly update Your Account Information to keep it accurate, complete and current. You may not: (i) select or use an Account ID of another person with the intent to impersonate that person; and (ii) use an Account ID that FasCat, in its sole discretion, deems offensive. You are solely responsible for confirming the set-up and configuration of Your Account in all respects and for making all changes and updates thereto through this Agreement.

Access.

To the Platform. You may access the Platform using the FasCat mobile application provided by FasCat for accessing the Platform (the “Application”) or through any website FasCat may provide or operate for accessing the Platform (each a “Site”). Each Site and Application will be included in the definition of the “Platform” for purposes of this Agreement. Subject to Your compliance with this Agreement, FasCat will permit You to access and use the Platform solely for lawful purposes and only in accordance with the terms of this Agreement. You are solely responsible for obtaining and maintaining all equipment, facilities, and connectivity required to access or use the Platform and each Site or Application.

To Applications. Your use of any Application is also subject to the terms of any end user license agreement applicable to that Application (“EULA”). In the event of any conflict between any EULA and this Agreement, the EULA will control on as to the Application to which it applies, and this Agreement will control in all other respects to the Platform, Services, and Content. Subject to Your compliance with this Agreement and any EULA, FasCat will permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform. You may install each Application only on devices or equipment owned or controlled by You and used only for Your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying that Application or otherwise provided to You by FasCat. Except as expressly set forth in this Section, You are granted no licenses or other rights in or to any Application. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application.

To Content. The Platform will provide You with the ability to access to a variety of Content, including, video, audio, text, photographs, illustrations, graphics, and other Content. Unless otherwise noted on the Platform, all Content available through the Platform (“Platform Content”) is owned by FasCat and FasCat’s third party licensors and providers. You are solely responsible for verifying the accuracy, completeness and applicability of all Platform Content and for Your use of any Platform Content. Subject to Your compliance with this Agreement, You may access the Platform Content solely for Your own personal purposes in connection with Your use of the Platform. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Platform Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Platform Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Platform Content. FasCat has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Platform Content. Without limiting the foregoing, FasCat will not be held liable to You or any other third party for any Content, including Your Content (as defined below), under a Federal Law called the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, You are granted no licenses or other rights in or to any Platform Content, or any IPR (as defined below) therein or related thereto. If You would like to use any Platform Content in a manner not permitted by this Agreement, please contact FasCat.

To Other Users. The Platform may allow you to connect and otherwise communicate with other Users of the Platform, both individually through messages to Users and generally through communications to multiple Users on boards, chats, comments, and other forums. By connecting or communicating with other Users, You are agreeing to allow those Users to communicate directly with You through the Platform. You agree that You are solely responsible for all communications between You and any other User through the Platform, including communications You make available to multiple Users through the Platform. Your decision to communicate with any other User through the Platform will serve as Your permission for FasCat to provide that other User with any of Your User Information or Your Content that You include in that communication, which may include sensitive personal information such as health data or geolocation information. You agree that Your communications through the Platform will not: (a) violate this Agreement, including the Privacy Policy (as defined below); (b) violate any applicable international, federal, state, and local treaties, laws, rules, regulations, and ordinances (“Laws”), including any rules of professional conduct or of licensing bodies; (c) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (d) constitute an infringement, misappropriation or violation of the IPR or other rights of any third party; (e) be illegal in any way or advocate illegal activity; (f) be false, misleading or inaccurate; (g) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement; (h) cause the publication or release of any material non-public data or information or (i) constitute the unauthorized practice of medicine, therapy, law or other professional service.

Your Content. You are solely responsible for all Content that You may provide or upload to the Platform or otherwise generate through Your use of or access to the Platform (“Your Content”). As between You and FasCat, You retain ownership of Your Content. However, subject to any limitations included in the Privacy Policy, You grant FasCat a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable (including to Users and other third parties) right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display (“Use”) Your Content throughout the world in any form, media, software or technology of any kind. You represent and warrant that none of Your Content or the use of Your Content by FasCat: (1) violates this Agreement or any requirements under applicable Laws; (2) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (3) constitutes an infringement, misappropriation or violation of the IPR or other rights of any third party; (4) is illegal in any way or advocates illegal activity; (5) is an advertisement or solicitation of funds, goods, or services; (6) is false, misleading or inaccurate; (7) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement; or (8) violates the Privacy Policy or any other applicable policy of FasCat. FasCat is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store, restore or back-up any of Your Content. You agree that You have all right, title, interest and consent in Your Content necessary to allow FasCat to Use Your Content as set forth in the rights and licenses You grant to FasCat under this Agreement.

Third-Party Content and Services. In addition to the terms of this Agreement, Your access to of certain Content and Services developed, provided or maintained by FasCat’s third party providers (“Third Party Content and Services”) may require You to agree to the terms of an additional agreement with that third party provider before being given access to the Third Party Content and Services (each, a “Third Party Content and Services Agreement”). The terms of any Third Party Content and Services Agreement (which may include payment of additional fees) will apply to the applicable Third Party Content and Services provided under that Third Party Content and Services Agreement in addition to the terms of this Agreement but will not apply to any other Content or Services You may access through the Platform. Except as set forth in this Agreement, the terms of any Third Party Content and Services Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Content and Services Agreement. FASCAT TAKES NO RESPONSIBILITY FOR ANY THIRD PARTY CONTENT OR SERVICE AND YOUR ACCESS TO AND USE OF ANY THIRD PARTY CONTENT OR SERVICE IS SOLELY AS SPECIFIED IN EACH APPLICABLE THIRD PARTY CONTENT AND SERVICES AGREEMENT.

Data Privacy. While the FasCat Privacy Policy for the Site is not part of this Agreement, you consent to the use and disclosure of your personally identifiable information and other data and information as described in FasCat’s Privacy Policy for the Site available at www.FasCatCoaching.com/page/privacy-policy (“Privacy Policy”). The Platform will provide You with access to data and other information provided by other Users of the Platform and other third parties (“User Information”). The User Information may contain sensitive personal information regarding those Users and other third parties, including health data and geolocation information. You agree that You will only collect, use and disclose User Information in accordance with this Agreement and the current Privacy Policy for the Platform. Except as expressly provided in this Agreement and the Privacy Policy, You are granted no licenses or rights in or to any User Information.

Fees. You agree to pay FasCat all fees applicable to Your level of access to the Platform (“Fees”) and to pay each applicable third party any other applicable amounts due or payable under the terms of any Third Party Content and Services Agreement. All Fees will be as indicated through the Platform when you establish your Account or in any notice You receive from FasCat in connection with Your Account or Your access to any Content or Service. All recurring Fees for each Paid Account will be due and payable by You in advance of the initial period and each applicable renewal period under this Agreement unless other payment terms have been extended to You by FasCat. All other Fees will be due and payable as indicated through the Platform. If You have specified credit card, debit card, online payment account, mobile services account, or other payment method as an applicable payment mechanism under this Agreement, You grant FasCat the right to charge the applicable payment account You provided to FasCat for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to FasCat (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. FasCat may change any portion of the Fees by posting the changes to the Platform or otherwise providing notice to You. Any such changes will take effect at the beginning of the next period of this Agreement. If FasCat requires use of collection agencies, attorneys, or courts of law for collection of Your account, You will be responsible for those expenses. You will be responsible for any and all use, sales, and other taxes imposed on the Services provided under this Agreement.

Termination and Effect.

Termination. This Agreement may be terminated by FasCat, at any time, in FasCat’s sole discretion: (a) immediately upon any breach by You of this Agreement, including a failure to pay any required Fees, with or without notice to You of such breach; or (b) at any time during any Trial Subscription, for any reason or no reason, upon notice to You. You may terminate this Agreement at any time upon notice to FasCat or by deleting Your Account as may be permitted through the Platform.

Effect. Termination of this Agreement will terminate all of Your Accounts on the Platform (whether Trial or Paid). Upon termination or expiration of this Agreement for any reason: (a) FasCat may terminate all access to or use of Your Accounts; (b) all rights and subscriptions granted to You under this Agreement will terminate; (c) You will immediately cease all use of and access to the Platform and all Content and Services; (d) You will immediately delete any Applications You have downloaded or installed prior to termination; (e) all Fees then owed by You will become immediately due and payable; and (f) except as expressly permitted by FasCat, You will either return to FasCat or, at FasCat's discretion, destroy any Content of FasCat in Your possession or control.

Suspension. Without limiting FasCat’s right to terminate this Agreement, FasCat may also suspend Your access to Your Account and the Platform and any Content or Services (including Your Content), with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or applicable Law or upon any other conduct deemed by FasCat, in its sole discretion, to be inappropriate or detrimental to the Platform, FasCat, or any other User or third party.

Platform Technology. The Platform, and the databases, software, hardware and other technology used by or on behalf of FasCat to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of FasCat. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.

Ownership. FasCat retains all right, title and interest, including all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Platform, under this Agreement. The FasCat name, logo and all names and logos associated with any Content or Services appearing on the Platform are trademarks of FasCat and its providers and You are granted no right or license to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.

Representations and Warranties.

General. You represent and warrant to FasCat that: (a) You have the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Your behalf; and (c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.

Compliance. You acknowledge that the Platform is a general purpose online service and is not specifically designed to facilitate compliance with any specific Law. Your use of the Platform (and the Services and Content) in compliance with any specific Law is your sole responsibility. FasCat is not responsible for enabling your compliance with any such Law or for your failure to comply. You will ensure that your use of and access to the Platform and all Services and Content will comply with all applicable Laws and will not cause FasCat itself to violate any applicable Laws, including the Health Insurance Portability and Accountability Act of 1996 or the Health Information Technology for Economic and Clinical Health (HI-TECH) Act (enacted as part of the American Recovery and Reinvestment Act of 2009).

Disclaimers.

No Endorsement. ALL CONTENT MADE AVAILABLE TO YOU THROUGH THE PLATFORM IS FOR ENTERTAINMENT PURPOSES ONLY. NEITHER FASCAT NOR ANY LICENSOR OR PROVIDER OF FASCAT RECOMMENDS OR ENDORSES ANY CONTENT OR ANY SPECIFIC PRODUCTS, SERVICES, PROCEDURES, OPINIONS OR RECOMMENDATIONS THAT MAY BE INCLUDED ON THE PLATFORM OR IN ANY CONTENT. YOUR RELIANCE ON ANY CONTENT APPEARING ON THE PLATFORM IS SOLELY AT YOUR OWN RISK.

No Professional Advice. THE PLATFORM, SERVICES, AND CONTENT DO NOT PROVIDE MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE AND IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE, DIAGNOSIS, TREATMENT OR RECOMMENDATIONS. ALL CONTENT MADE AVAILABLE TO YOU THROUGH THE PLATFORM IS FOR INFORMATIONAL PURPOSES OR GENERAL GUIDANCE ONLY. YOUR USE OF THE PLATFORM OR ANY SERVICES OR CONTENT AND ANY INTERACTIONS YOU MAY HAVE WITH FASCAT OR ANY OTHER USER OR THIRD PARTY THROUGH THE PLATFORM DO NOT CREATE A PROFESSIONAL RELATIONSHIP AND DO NOT CREATE ANY PRIVACY INTERESTS OTHER THAN THOSE DESCRIBED IN THE PRIVACY POLICY. YOU SHOULD ALWAYS SEEK THE ADVICE OF A QUALIFIED MEDICAL PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR INDIVIDUAL NEEDS OR ANY MEDICAL CONDITION. NEVER DISREGARD MEDICAL OR PROFESSIONAL ADVICE (OR DELAY IN SEEKING IT) BECAUSE OF ANY CONTENT YOU HAVE OBTAINED THROUGH THE PLATFORM. NEITHER FASCAT NOR ANY OTHER USER RECOMMENDS OR ENDORSES ANY CONTENT OR ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS OR OTHER CONTENT THAT MAY BE INCLUDED ON THE SITE. YOUR RELIANCE ON ANY CONTENT APPEARING ON THE SITE IS SOLELY AT YOUR OWN RISK.

No Additional Warranties. THE PLATFORM AND ALL CONTENT AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FASCAT AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY OR CURRENCY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE PLATFORM CONTENT OR OTHER DATA, INFORMATION OR CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. FASCAT AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FASCAT, ITS EMPLOYEES, PROVIDERS OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.

Indemnity. You hereby agree to indemnify, defend, and hold harmless FasCat and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensors, and successors in interest (“Indemnified Parties”) from any and against all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Platform or any Content or Services; (2) Your Content or any access to or use thereof; (3) any access to or use of Your Content by any other Users; (4) Your collection, use, or disclosure of any User Information, and (5) Your breach of any provision of this Agreement, including any representation or warranty. FasCat will provide You with notice of any such claim or allegation, and FasCat will have the right to participate in the defense of any such claim at its expense.

Limitation on Liability. FASCAT WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH THIS AGREEMENT OR OUT OF THE USE OF THE PLATFORM OR ANY CONTENT OR SERVICES, EVEN IF FASCAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS, OR SERVICES. FASCAT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ANY AMOUNTS PAID BY YOU TO FASCAT IN THE 1 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. YOU AGREE THAT FASCAT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FASCAT’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Claims of Infringement. FasCat respects Your copyrights and other intellectual property rights and those of other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Platform without Your authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:

FasCat Digital Fitness, PBC
Attn: Copyright Infringement Agent
[__________________]
[__________________]

Please provide the following information to FasCat’s Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) 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; and (5) Your electronic or physical signature.

Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by FasCat in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.

Feedback. Any information, content, or materials you provide to us through the Platform, including any feedback, comments, or suggestions relating to the use, operation, performance, functionality, or features of the Platform, Services, or Content (“Feedback”) is entirely voluntary. We will be free to use any Feedback as we see fit for any purpose and without any without notice, payment, or other obligation to you. All use of any Feedback will be at our sole discretion.

Force Majeure. FasCat will not be responsible for failure or delay in the performance of any obligation under this Agreement to the extent such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, quarantine, pandemic, labor disputes, fire or other loss of facilities, accident, or any other event beyond its control. FasCat will use commercially reasonable efforts to notify you of any such event.

Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Subject to Section 19 (Disputes), each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court located in Denver, Colorado U.S.A. and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by FasCat.

Notices. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to FasCat by postal mail to the address for FasCat listed on the Platform. FasCat may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to FasCat in connection with Your Account, provided that in the case of any notice applicable both to You and other Users of the Platform, FasCat may instead provide such notice by posting on the Platform. Notices provided to FasCat will be deemed given when actually received by FasCat. Notice provided to You will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.

Linked Sites. The Platform may contain links to third-party sites or Content that are not under the control of FasCat. If you access a third-party site or Content from the Platform, then you do so at your own risk and FasCat is not responsible for any content on any linked site or content. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by FasCat or any group or individual affiliated with FasCat. You may not use on your site any Platform Content or marks appearing on the Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without prior written consent.
Additional Terms. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Platform, including all Content and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform and all Content and Services. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by FasCat under this Agreement must be in writing or later acknowledged by FasCat in writing. Any waiver or failure by FasCat to enforce any provision of this Agreement on one occasion will not be deemed a waiver by FasCat of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with applicable Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the applicable Law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of FasCat. Any assignment in violation of the foregoing will be null and void. FasCat may assign this Agreement to any party that assumes FasCat’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Any reference herein to “including” will mean “including, without limitation.” Upon request from FasCat, You agree to provide FasCat with such documentation or records with respect to Your activities under this Agreement as may be reasonably requested for FasCat to verify Your compliance with the terms of this Agreement and all applicable Laws. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions), 9 (Data Privacy), 10 (Fees), 11 (Termination and Effect), 14 (Ownership), 15 (Representations and Warranties), 16 (Disclaimers), 17 (Indemnity), 18 (Limitation on Liability), 20 (Disputes), 23 (Governing Law and Venue), 24 (Notices) and 26 (Additional Terms).

Terms and Conditions

FasCat Affiliate Program Terms of Service

Agreement

By signing up to be an Affiliate in the FasCat Affiliate Program (“Program”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”).

FasCat reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Program, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Program after any such changes shall constitute your consent to such changes.

Violation of any of the terms below will result in the termination of your Account and for forfeiture of any outstanding affiliate commission payments earned during the violation. You agree to use the Affiliate Program at your own risk.

Account Terms

You must be 18 years or older to be part of this Program.
You must live in the United States to be an Affiliate.
You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
Your login may only be used by one person – a single login shared by multiple people is not permitted.
You are responsible for maintaining the security of your account and password. FasCat cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
You are responsible for all Content posted and activity that occurs under your account.
One person or legal entity may not maintain more than one account.
You may not use the Affiliate Program for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You may not use the Affiliate Program to earn money on your own FasCat product accounts.

Links/graphics on your site, in your emails, or other communications

Once you have signed up for the Affiliate Program, you will be assigned a unique Affiliate Code. You are permitted to place links, banners, or other graphics we provide with your Affiliate Code on your site, in your emails, or in other communications. We will provide you with guidelines, link styles, and graphical artwork to use in linking to FasCat. We may change the design of the artwork at any time without notice, but we won’t change the dimensions of the images without proper notice.

To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special link formats to be used in all links between your site and the FasCat. You must ensure that each of the links between your site and the FasCat properly utilizes such special link formats. Links to the FasCat placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as “Special Links.” You will earn referral fees only with respect to sales on a FasCat product occurring directly through Special Links; we will not be liable to you with respect to any failure by you or someone you refer to use Special Links or incorrectly type your Affiliate Code, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.

Affiliate links should point to the page of the product being promoted.

Referral fees/commissions and payment

For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site, email, or other communications to http://fascatcoaching.com and complete an order for a product during that session.

We will only pay commissions on links that are automatically tracked and reported by our systems. We will not pay commissions if someone says they purchased or someone says they entered a referral code if it was not tracked by our system. We can only pay commissions on business generated through properly formatted special links that were automatically tracked by our systems.

We reserve the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.

Payments only begin once you’ve earned more than $20 in affiliate income. If your affiliate account never crosses the $20 threshold, your commissions will not be realized or paid. We are only responsible for paying accounts that have crossed the $20 threshold.

Identifying yourself as a FasCat Affiliate

You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, say you develop our products, say you are part of FasCat or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).

You may not purchase products through your affiliate links for your own use. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement.

Payment schedule

As long as your current affiliate earning are over $20, you’ll be paid each month. If you haven’t earned $20 since your last payment, we’ll pay you the following monht after you’ve crossed the threshold.

Customer definition

Customers who buy products through this Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you have listed on your site, you should not display product prices on your site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

Your responsibilities

You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:

– The technical operation of your site and all related equipment
– Ensuring the display of Special Links on your site does not violate any agreement between you and any third party (including without limitation any restrictions or requirements placed on you by a third party that hosts your site)
– The accuracy, truth, and appropriateness of materials posted on your site (including, among other things, all Product-related materials and any information you include within or associate with Special Links)
– Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
– Ensuring that materials posted on your site are not libelous or otherwise illegal
– Ensuring that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers.

Compliance with Laws

As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.

Term of the Agreement and Program

The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to http://fascatcoaching.com, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. FasCat reserves the right to end the Program at any time. Upon program termination, FasCat will pay any outstanding earnings accrued above $20.

Termination

FasCat, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Program, or any other FasCat service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all potential or to-be-paid commissions in your Account if they were earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods. FasCat reserves the right to refuse service to anyone for any reason at any time.

Relationship of Parties

You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

Limitations of Liability

We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.

Disclaimers

We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the FasCat will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

Arbitration

Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

Miscellaneous

This Agreement will be governed by the laws of The United States, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

The failure of FasCat to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and FasCat and govern your use of the Service, superceding any prior agreements between you and FasCat (including, but not limited to, any prior versions of the Terms of Service).