Last Updated: May 5, 2020
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Peak Level Performance LLC provides an online fitness community, service, content and features through Peak Level Performance LLC websites, such as those for our support and local pages (the “Peak Level Performance LLC Site(s)”), the interfaces on tablets connected to Peak Level Performance LLC, Peak Level Performance LLC’s mobile, desktop, or device applications (including iOS and Android applications (“Apps”) and Peak Level Performance LLC-controlled social media pages (including on Facebook, Instagram, and LinkedIn). To make these Terms easier to read, the Peak Level Performance LLC Sites and Apps, along with the Peak Level Performance LLC tablet interfaces and Peak Level Performance LLC-controlled social media pages are collectively called the “Peak Level Performance LLC Service” or “the Services”. By registering as a member or by visiting, browsing, or using the Peak Level Performance LLC Service in any way, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and Peak Level Performance LLC.
If you do not agree to these Terms, you may not access or use the Peak Level Performance LLC Service or Content. From time to time, Peak Level Performance LLC may implement additional elements which may be subject to additional terms and condition, which are incorporated into these Terms by this reference.
1. Age Requirement for Use.
You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence to subscribe to use Peak Level Performance LLC Services. You are responsible for ensuring these Terms are incompliance with all laws, rules and regulations applicable to you. Your subscription may be revoked where these Terms or use of Peak Level Performance LLC Service is prohibited or conflicts with applicable law, rule or regulation. We may refuse to offer any person ability to subscribe and change the criteria to subscribe at any time.
2. Subscription to Peak Level Performance LLC.
The use of Peak Level Performance LLC Services are for your own personal use, and not for commercial purposes. This subscription is personal to you and is to not be assigned to anyone else. By acknowledging these terms by subscribing to Peak Level Performance LLC Service you are agreeing to not re-sell, redistribute, or reproduce the Peak Level Performance LLC Service.
4. Subscription Requirement.
You must register as a subscriber of Peak Level Performance LLC Service and enter into an agreement for access to our content. A business, club, or entity may subscribe to Peak Level Performance LLC Services in an effort to provide you, the user, the Peak Level Performance Services. In these cases, Peak Level Performance LLC and the organization have commenced a service agreement on the user(s) behalf. You are eligible for access to Peak Level Performance Services, but first must provide applicable registration information prior to use. For all others, you must provide accurate registration information which is required to complete the subscription process. It is your responsibility to keep your account information up to date. We may suspend or terminate subscriptions without accurate account information.
5. Account Security.
Your subscription is for your use only, and you are responsible for all activity that occurs under your account including those by unauthorized users.
6. Subscription Structure and Fees.
Subscriptions offered through the Peak Level Performance LLC Service may vary from time to time. The content and prices are subject to change.
If a subscription is purchased as part of an agreement between Peak Level Performance LLC and a company, club, or entity that is subscribing to Peak Level Performance Services for the purpose of providing Peak Level Performance Services to subsequent subscription holders, than the subscription structure and fees agreement lies between Peak Level Performance LLC and said company, club, or entity. Peak Level Performance LLC has the right to remove any Peak Level Performance Services provided to any subsequent subscription holders purchased by company, club, or entity if there has been a breach of contract between said company, club, or entity and Peak Level Performance LLC.
If any additional subscriptions or services are purchased at the sole discretion of the subsequent subscription holder that exceed the agreement set forth between the company, club, or entity and Peak Level Performance LLC, then that individual becomes responsible for the additional monetary compensation for the Peak Level Performance Services rendered. Any and all additional services purchased then places the subsequent subscription holder in agreement directly between themselves and Peak Level Performance LLC for the additional service. Any company, club, or entity that is providing Peak Level Performance Services is liable only for the Services per their contractual agreement between Peak Level Performance LLC and said company, club, or entity.
Additional services purchased places the subsequent subscription holder under the same agreement that an individual subscription holder would be obligated to. If this person does not agree to the individual subscription holder agreement then that person will not be eligible for a subscription and new services will not be provided to that subscription holder.
7. Term and Termination.
Terms begin upon submitting payment to the Peak Level Performance LLC Service, and continues as long as the subscription remains active. Termination of Peak Level Performance LLC Service may occur if Peak Level Performance LLC determines that you have violated these Terms or that your conduct would damage the reputation of Peak Level Performance LLC. Upon termination of these Terms, all subscriptions granted by Peak Level Performance LLC will terminate. If an account is terminated for any reason, user content will no longer be available.
If a subscription is purchased as part of an agreement between Peak Level Performance LLC and a company, club, or entity that is subscribing to Peak Level Performance Services for the purpose of providing Peak Level Performance Services to subsequent subscription holders, than the subscription Terms and Termination set forth in part 7 of this agreement lies between Peak Level Performance LLC and said company, club, or entity, unless additional services are being provided to which the new services agreement is set between subsequent account holder and Peak Level Performance LLC as set forth in section 6 of this agreement.
8. End User License Agreement.
This End User License Agreement (“Agreement”) is between you and Peak Level Performance and governs use of the app made available through the app distribution platform. By installing the Peak Level Performance App, you agree to be bound by this Agreement and understand that there is no tolerance for objectionable content. If you do not agree with the terms and conditions of this Agreement, you are not entitled to use the Peak Level Performance App.
1. Parties. This Agreement is between you and Peak Level Performance only, and not the app provider. Notwithstanding the foregoing, you acknowledge that the app provider and its subsidiaries are third party beneficiaries of this Agreement and the app provider has the right to enforce this Agreement against you. Peak Level Performance is solely responsible for the Peak Level Performance App and its content.
2. Privacy. Peak Level Performance may collect and use information about your usage of the Peak Level Performance App, including certain types of information from and about your device. Peak Level Performance may use this information, as long as it is in a form that does not personally identify you, to measure the use and performance of the Peak Level Performance App.
3. Limited License. Peak Level Performance grants you a limited, non-exclusive, non-transferable, revocable license to use the Peak Level Performance App for your personal, non-commercial purposes. You may only use the Peak Level Performance App on devices that you own or control and as permitted by the App Store Terms of Service.
4. Age Restrictions. By using the Peak Level Performance App, you represent and warrant that (a) you are 18 years of age or older or age of legal majority in your jurisdiction of residence and you agree to be bound by this Agreement; (b) if you are under 18 years of age, you have obtained verifiable consent from a parent or legal guardian; and (c) your use of the Peak Level Performance App does not violate any applicable law or regulation. Your access to the Peak Level Performance App may be terminated without warning if Peak Level Performance believes, in its sole discretion, that you are under the age of 18 years and have not obtained verifiable consent from a parent or legal guardian. If you are a parent or legal guardian and you provide your consent to your child's use of the Peak Level Performance App, you agree to be bound by this Agreement in respect to your child's use of the Peak Level Performance App.
5. Objectionable Content Policy. Content may not be submitted to Peak Level Performance, who will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
6. Warranty. Peak Level Performance disclaims all warranties about the Peak Level Performance App to the fullest extent permitted by law. To the extent any warranty exists under law that cannot be disclaimed, Peak Level Performance shall be solely responsible for such warranty.
7. Maintenance and Support. Peak Level Performance does provide minimal maintenance or support for it but not to the extent that any maintenance or support is required by applicable law, Peak Level Performance, not Apple, shall be obligated to furnish any such maintenance or support.
8. Product Claims. Peak Level Performance is responsible for addressing any claims by you relating to the Peak Level Performance App or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the Peak Level Performance App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that you may have such claims.
9. Third Party Intellectual Property Claims. Peak Level Performance shall not be obligated to indemnify or defend you with respect to any third-party claim arising out or relating to the Peak Level Performance App. To the extent Peak Level Performance is required to provide indemnification by applicable law, Peak Level Performance shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the Peak Level Performance App or your use of it infringes any third-party intellectual property right.
9. Peak Level Performance LLC Enforcement Rights. Subject to these Terms, you agree not to:
1. Use, display or copy Peak Level Performance LLC logo, proprietary information, forms, or the layout and design of the Service without express written consent of Peak Level Performance LLC.
2. Access or tamper with any areas of the Peak Level Performance LLC Service, computer systems, or technical delivery.
3. Circumvent any measure implemented by Peak Level Performance LLC to protect the Service or Content.
4. Send any unauthorized materials or form of solicitation including but not limited to advertising, email, and letter.
5. Use any meta tags, hidden text or metadata using Peak Level Performance LLC trademarks, logo, or product name without express written consent of Peak Level Performance LLC.
6. Use Peak Level Performance LLC Service for any commercial purpose.
7. Attempt to interfere with or attempt to interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, or spamming the Peak Level Performance LLC Service.
8. Collect personal identifiable information from Peak Level Performance LLC Service users.
9. Impersonate another user other than yourself.
10. Violate any applicable law or regulation.
Peak Level Performance LLC has the right to review or edit any content for the purpose of operating, ensuring compliance with these Terms, complying with applicable law or other legal requirements, and maintaining the reputation of Peak Level Performance LLC. We reserve the right to modify, remove or disable access to any content and without notice. This may include, but is not limited to, updating, adding, enhancing, modifying, removing, or altering any content or features of the Peak Level Performance LLC Service.
10. Third Parties.
Personal dealings with any third party found on or through the Peak Level Performance LLC Service, regarding payment or any other terms are solely between you and such third party. By accessing third parties through Peak Level Performance LLC Service, you agree that Peak Level Performance LLC is not responsible for liable for any loss, damage, or other matters incurred as a result of such dealings.
You agree to indemnify, defend, and hold harmless Peak Level Performance LLC and its members, agents, contractors, companies, clubs, or entities that Peak Level Performance has agreed upon contracts with to provide subsequent subscriptions, or anyone affiliated with Peak Level Performance LLC Services from and against all claims, damages, losses and costs that arise from or relate to the following:
1. Your activities on the Peak Level Performance Service.
2. Any content submitted by or on behalf of you.
3. Your violation of these terms.
Peak Level Performance LLC Service provides its Service on an “As Is” and “As Available” basis. Peak Level Performance makes no representations that the service will be uninterrupted or error-free, or that the service will meet your personal or professional needs.
13. Limitation of Liability.
To the fullest extent permitted by law: (i) Peak Level Performance LLC and any companies, clubs, or entities that come to agreement to provide subsequent subscription holders Peak Level Performance LLC Services shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Peak Level Performance LLC Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and (ii) Peak Level Performance LLC’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Peak Level Performance LLC over the 12 months preceding the date your first claim(s) arose. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Peak Level Performance LLC’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Peak Level Performance LLC and you.
14. Safety Warnings.
Although Peak Level Performance LLC provides its services with your health and safety in mind, each individual has their own limitations and it is therefore essential that you consult your physician or other licensed healthcare provider for necessary medical or appropriate care. Follow all safety and other instructions provided by Peak Level Performance LLC, and obtain appropriate authorization before accessing or using any Peak Level Performance LLC Services, especially if you are prone to injuries, are pregnant or nursing, or have any other unique or special medical conditions. All Peak Level Performance LLC Services are provided for informational purposes only, and are not intended to diagnose any medical or healthcare condition, replace the advice of a licensed healthcare professional, or provide any medical advice, opinion, diagnosis, treatment or guarantee. The information made available on or through the Peak Level Performance LLC Services should not be relied upon when making medical or other important healthcare decisions. Any individual results using Peak Level Performance LLC Services may vary. Exercise and proper diet are necessary to achieve and maintain weight loss and muscle definition. In becoming a subscriber to the Peak Level Performance LLC Service, you are agreeing to the above safety warnings.
15. Arbitration. PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS.
1. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Peak Level Performance LLC agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Peak Level Performance LLC entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Peak Level Performance LLC are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
2. Exceptions and Opt-out. As limited exceptions to Section 15(1) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Peak Level Performance LLC’s Legal Department at the Peak Level Performance LLC address set out below within thirty (30) days following the date you first agree to these Terms.
3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
4. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Peak Level Performance LLC will pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than U.S. $10,000, unless the arbitrator finds your Dispute to be frivolous. If we prevail in arbitration, we will seek to recover all of our attorneys’ fees and costs from you to the extent provided by applicable law. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
5. Class Action Waiver. You and Peak Level Performance LLC agree that each of us may bring claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 15 shall be null and void.
6. Effect of Changes on Arbitration. Notwithstanding the provisions of Section 20 “Modification”, if Peak Level Performance LLC changes any of the terms of this Section 15 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Peak Level Performance LLC’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Peak Level Performance LLC in accordance with the terms of this Section 16 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
7. Severability. With the exception of any of the provisions in Section 15.5 above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
16. Governing Law and Jurisdiction.
Your subscription to the Peak Level Performance LLC Service shall be governed by the laws of the state of South Carolina, United States of America, without regard to principles of conflicts of law. Subject to the agreements above, exclusive jurisdiction for all disputes that are not required to be arbitrated will be the state and federal courts located in Aiken, South Carolina, United States of America, and you consent to the jurisdiction of those courts.
The formatting of the Terms is made for ease of use for the reader. However, headings should not be used to construe the terms. If it is found that any part of these terms is found to be unenforceable by any court, that particular term will be removed.
You may not transfer Peak Level Performance LLC Services without prior written consent from Peak Level Performance LLC.
Peak Level Performance LLC communications will be sent electronically. Additionally, Peak Level Performance LLC may from time to time communicate via email, by posting to social media, via mail, push notifications, or through the Peak Level Performance LLC Services. For support related inquiries you may email support at email@example.com.
20. Terms Modification.
We may in our sole discretion update these Terms at any time. When updates are made, the updated terms will be posted on the Peak Level Performance LLC site. Changes will be effective on the posted date, noted at the top of the terms. If you continue to use Peak Level Performance LLC Services after the update, you are agreeing to the updated terms. If you don’t agree to the new terms, then you will no longer access the Peak Level Performance LLC Service.
21. Service Modifications.
We may in our sole discretion update, change, or discontinue any part of the Peak Level Performance LLC Service without written notice.
22. Force Majeure.
Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.