TERMS OF SERVICE
Terms of Service:
The following terms and conditions govern all use of the peakfitpro.com website and all
services and products available at or through the website (taken together, the Website). The Website is owned
and operated by M5 Fitness Inc. ("M5 Fitness"). The Website is
offered subject to your acceptance without modification of all of the terms and conditions contained herein and
all other operating rules, policies (including, without
published from time to time on this Site by M5 Fitness (collectively, the "Agreement").
Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the
web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all
the terms and conditions of this agreement, then you may not access the Website or use any services. If these
terms and conditions are considered an offer by M5 Fitness, acceptance is expressly limited to
these terms. The Website is available only to individuals who are at least 13 years
- Your peakfitpro.com Account and Site. If you create a blog/site on the
Website, you are responsible for maintaining the security of your account and blog, and you are fully
responsible for all activities that occur under the account and any other actions taken in connection with
the blog. You must not describe or assign keywords to your blog in a misleading or unlawful manner,
including in a manner intended to trade on the name or reputation of others, and M5 Fitness may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise
likely to cause M5 Fitness liability. You must immediately
notify M5 Fitness of any unauthorized uses of your blog, your account or any other breaches
of security. M5 Fitness will not be liable for any acts or omissions by You, including any
damages of any kind incurred as a result of such acts or omissions.
- Responsibility of Contributors. If you operate a blog, comment on a blog, post material to
the Website, post links on the Website, or otherwise make (or allow any third party to make) material
available by means of the Website (any such material, "Content"), You are entirely responsible for
the content of, and any harm resulting from, that Content. That is the case regardless of whether the
Content in question constitutes text, graphics, an audio file, or computer software. By making Content
available, you represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including
but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either (i) received
permission from your employer to post or make available the Content, including but not limited to
any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all
things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful
or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not
contain unethical or unwanted commercial content designed to drive traffic to third party sites or
boost the search engine rankings of third party sites, or to further unlawful acts (such as
phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence towards individuals or
entities, and does not violate the privacy or publicity rights of any third party;
- your blog is not getting advertised via unwanted electronic messages such as spam links on
newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
- your blog is not named in a manner that misleads your readers into thinking that you are another
person or company. For example, your blog's URL or name is not the name of a person other than
yourself or company other than your own; and
- you have, in the case of Content that includes computer code, accurately categorized and/or
described the type, nature, uses and effects of the materials, whether requested to do so by
M5 Fitness or otherwise.
By submitting Content to M5 Fitness for inclusion on your Website, you
grant M5 Fitness a world-wide, royalty-free, and non-exclusive license to reproduce,
modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting
your blog. If you delete Content, M5 Fitness will use reasonable efforts to remove it
from the Website, but you acknowledge that caching or references to the Content may not be made
Without limiting any of those representations or warranties, M5 Fitness has the right
(though not the obligation) to, in M5 Fitness's sole discretion (i) refuse or
remove any content that, in M5 Fitness's reasonable opinion, violates
any M5 Fitness policy or is in any way harmful or objectionable, or (ii) terminate or
deny access to and use of the Website to any individual or entity for any reason,
in M5 Fitness's sole discretion. M5 Fitness will have no
obligation to provide a refund of any amounts previously paid.
- Payment and Renewal.
- General Terms.
By selecting a product or service, you agree to pay M5 Fitness the one-time and/or
annual subscription fees indicated (additional payment terms may be included in other
communications). Subscription payments will be charged on a pre-pay basis on the day you sign up for
an Upgrade and will cover the use of that service for a monthly or annual subscription period as
indicated. Payments are not refundable.
- Automatic Renewal.
Unless you notify M5 Fitness before the end of the applicable subscription period
that you want
to cancel a subscription, your subscription will automatically renew and you authorize us to collect
the then-applicable annual or monthly subscription fee for such subscription (as well as any taxes)
using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled
at any time by submitting your request to M5 Fitness in writing.
- Fees; Payment. By signing up for a Services account you agree to
pay M5 Fitness the applicable setup fees and recurring fees. Applicable fees will be invoiced starting from the day
your services are established and in advance of using such services. M5 Fitness reserves the
right to change the payment terms and fees
upon thirty (30) days prior written notice to you. Services can be canceled by you at anytime on
thirty (30) days written notice
to M5 Fitness.
- Support. If your service includes access to priority email support. "Email
support" means the ability to make requests for technical support assistance by email at any
time (with reasonable efforts by M5 Fitness to respond within
one business day) concerning the use of the VIP Services.
means that support takes priority over support for users of the standard or
free peakfitpro.com services. All support will be provided in accordance
with M5 Fitness standard services practices,
procedures and policies.
- Responsibility of Website Visitors. M5 Fitness has not reviewed, and
cannot review, all
of the material, including computer software, posted to the Website, and cannot therefore be responsible for
that material's content, use or effects. By operating the Website, M5 Fitness does not
represent or imply
that it endorses the material there posted, or that it believes such material to be accurate, useful or
non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer
systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may
contain content that is offensive, indecent, or otherwise objectionable, as well as content containing
technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that
violates the privacy or publicity rights, or infringes the intellectual property and other proprietary
rights, of third parties, or the downloading, copying or use of which is subject to additional terms and
conditions, stated or unstated. M5 Fitness disclaims any responsibility for any harm
resulting from the
use by visitors of the Website, or from any downloading by those visitors of content there posted.
- Content Posted on Other Websites. We have not reviewed, and cannot review, all of the
material, including computer software, made available through the websites and webpages to which
peakfitpro.com links, and that link to peakfitpro.com.
M5 Fitness does not have any control over those non-M5 Fitness websites
and webpages, and is not responsible for their contents or their use. By linking to a
non-M5 Fitness website or webpage, M5 Fitness does not represent or imply
that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect
yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive
content. M5 Fitness disclaims any responsibility for any harm resulting from your use of
non-M5 Fitness websites and webpages.
- Copyright Infringement and DMCA Policy. As M5 Fitness asks others to
intellectual property rights, it respects the intellectual property rights of others. If you believe that
material located on or linked to by peakfitpro.com violates your copyright, you are
encouraged to notify M5 Fitness in accordance with M5 Fitness's Digital Millennium Copyright Act ("DMCA") Policy.
M5 Fitness will respond to all such notices, including as required or appropriate by
removing the infringing material or disabling all links to the infringing
material. M5 Fitness will terminate a visitor's access to and use of the Website if, under
appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other
intellectual property rights of M5 Fitness or others. In the case of such
termination, M5 Fitness will have no obligation to provide a refund of any amounts
previously paid to M5 Fitness.
- Intellectual Property. This Agreement does not transfer from M5 Fitness to you any M5 Fitness or third party intellectual property, and all right, title and
interest in and to such property will remain (as between the parties) solely
with M5 Fitness. M5 Fitness, peakfitpro.com,
the peakfitpro.com logo, and all other trademarks, service marks, graphics and logos used
in connection with peakfitpro.com, or the Website are trademarks or registered trademarks
of M5 Fitness or M5 Fitness's licensors. Other trademarks, service
marks, graphics and logos used in connection with the Website may be the trademarks of other third parties.
Your use of the Website grants you no right or license to reproduce or otherwise use
any M5 Fitness or third-party trademarks.
- Advertisements. M5 Fitness reserves the right to display advertisements
on your blog unless you have purchased an ad-free account.
- Attribution. M5 Fitness reserves the right to display attribution links
such as 'Blog at peakfitpro.com,' theme author, and font attribution in your blog footer
- Partner Products. By activating a partner product (e.g. theme) from one of our partners,
you agree to that partner's terms of service. You can opt out of their terms of service at any time by
de-activating the partner product.
- Domain Names. If you are registering a domain name, using or transferring a previously
registered domain name, you acknowledge and agree that use of the domain name is also subject to the
policies of the Internet Corporation for Assigned Names and Numbers ("ICANN"), including their Registration
Rights and Responsibilities.
- Changes. M5 Fitness reserves the right, at its sole discretion, to modify
or replace any
part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your
continued use of or access to the Website following the posting of any changes to this Agreement constitutes
acceptance of those changes. M5 Fitness may also, in the future, offer new services and/or
through the Website (including, the release of new tools and resources). Such new features and/or services
shall be subject to the terms and conditions of this Agreement.
- Termination. M5 Fitness may terminate your access to all or any part of
the Website at
any time, with or without cause, with or without notice, effective immediately. If you wish to terminate
this Agreement or your peakfitpro.com account (if you have one), you may simply
Website. Notwithstanding the foregoing, if you have a paid services account, such account can only be
terminated by M5 Fitness if you materially breach this Agreement and fail to cure such
thirty (30) days from M5 Fitness's notice to you thereof;
provided that, M5 Fitness can terminate the Website immediately as part of a general shut
down of our
service. All provisions of this Agreement which by their nature should survive termination shall survive
termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and
limitations of liability.
- Disclaimer of Warranties. The Website is provided "as is".
M5 Fitness and its suppliers and licensors hereby disclaim all warranties of any kind,
implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose
and non-infringement. Neither M5 Fitness nor its suppliers and licensors, makes any
warranty that the
Website will be error free or that access thereto will be continuous or uninterrupted. You understand that
you download from, or otherwise obtain content or services through, the Website at your own discretion and
- Limitation of Liability. In no event will M5 Fitness,
or its suppliers
or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence,
strict liability or other legal or equitable theory for: (i) any special, incidental or consequential
damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or
loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you
to M5 Fitness under this agreement during
the twelve (12) month period prior to the cause of
action. M5 Fitness shall have no liability for any failure or delay due to matters beyond
their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
- General Representation and Warranty. You represent and warrant that (i) your use of the
Website will be in strict accordance with
and with all applicable laws and regulations (including without limitation any local laws or regulations in
your country, state, city, or other governmental area, regarding online conduct and acceptable content, and
including all applicable laws regarding the transmission of technical data exported from the United States
or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the
intellectual property rights of any third party.
- Indemnification. You agree to indemnify and hold harmless M5 Fitness, its
and its licensors, and their respective directors, officers, employees and agents from and against any and
all claims and expenses, including attorneys' fees, arising out of your use of the Website, including but
not limited to your violation of this Agreement.
- Miscellaneous. This Agreement constitutes the entire agreement
between M5 Fitness and
you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an
authorized executive of M5 Fitness, or by the posting by M5 Fitness of a
revised version. Except to
the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website
will be governed by the laws of the state of New York, U.S.A., excluding its conflict of law provisions,
and the proper
venue for any disputes arising out of or relating to any of the same will be the state and federal courts
located in Onondaga County, New York. Except for claims for injunctive or equitable relief or
intellectual property rights (which may be brought in any competent court without the posting of a bond),
any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive
Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by three
arbitrators appointed in accordance with such Rules. The arbitration shall take place in
Syracuse, New York, in the English language and the arbitral decision may be
in any court.
The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and
attorneys' fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed
to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A
waiver by either party of any term or condition of this Agreement or any breach thereof, in any one
instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights
under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions;
M5 Fitness may assign its rights under this Agreement without condition. This Agreement
will be binding
upon and will inure to the benefit of the parties, their successors and permitted assigns.