CUSTOMER AGREEMENT AND TERMS OF SERVICE

1.                    DESCRIPTION OF SERVICE.

FitnessGenerator, Inc. (“FitnessGenerator”) operates the FitnessGenerator.com web site (the "Site") to offer licensed personal trainers access to personal training, health,   wellness and fitness information for use in their independent development of training programs for their clientele.  Use of the Site is governed by this agreement (this “Agreement”) and the terms of service (“TOS”) described herein.

2.                    ACCEPTANCE OF TERMS OF SERVICE.

To become a member of the Site, you must complete the customer registration process and agree to the following TOS.  You must indicate your consent to be bound by this Agreement and the TOS described herein by clicking the “I AGREE” button relating to this Agreement.

3.                    CUSTOMER REGISTRATION REQUIREMENTS.

To open an account, you will need to select a user-name and a password.  You will also need to complete a profile (which will contain certain personally identifiable information and billing information) by providing FitnessGenerator with true, accurate, current and complete information as prompted by the Site’s online registration form.  If you provide any information that is untrue, inaccurate, not current or incomplete, or FitnessGenerator has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FitnessGenerator has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).  All information that you provide to us will be subject to the terms of our Privacy Statement.

You may not share your user-name or password with others.   FitnessGenerator may refuse to permit you to use any user-name or password that FitnessGenerator, in its sole discretion, deems offensive.

4.                    SECURITY.

You will be solely responsible for maintaining the confidentiality of your password, which you will not have to reveal to any representative or agent of FitnessGenerator.  You agree to (a) immediately notify memberservices@FitnessGenerator.com of any known or suspected unauthorized use(s) of your account or password or of any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information and (b) ensure that you exit from your account at the end of each session.   FitnessGenerator cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.

5.                    RESPONSIBILITY FOR ACCOUNT ACTIVITY.

You are solely responsible for all usage or activity on your account or password, including use of your account or password by any third party.  Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account, at FitnessGenerator's sole discretion.

6.                    FEES AND PAYMENTS.

You will be charged a monthly subscription fee.  You will be charged additional fees as and when you license, purchase or access certain products and services from or through the Site.  Such subscription and other fees will be clearly posted, and no fee will be charged to your account unless you have agreed in advance to pay the fee for your specific purchase.

You will pay all fees and charges incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred.  All fees and charges will be billed to and paid for by you.  You agree to pay all applicable taxes relating to use of the Site (and purchase of products and services) through your account.

FitnessGenerator reserves the right to change its fee structure at any time, including to increase or decrease fees or add any new fees or charges at any time.  However, FitnessGenerator will not change the subscription fee applicable to any period for which you have already elected to subscribe.

7.                    CHANGES TO TOS.

FitnessGenerator may change, add or delete any one or more of the TOS by providing notice to you as set forth in Section 22 of this Agreement or by posting such changes on the Site.  If any future changes are unacceptable to you, you may cancel your account by going to http://RyanLeeSupport.com and choosing the cancellation option.  Such cancellation will become effective upon the expiration of the period for which you have paid your membership subscription.  Your failure to cancel your account following the posting of notice of any changes will indicate your acceptance of the TOS as changed.

8.                    CHANGES TO SERVICE.

FitnessGenerator may change, modify, add, suspend or discontinue, temporarily or permanently, any aspect of the Site at any time, including the availability of any feature, database, or content, with or without notice to you.  FitnessGenerator may also impose limits on certain features and services or restrict your access to part or all of the Site without notice to you.  You agree that FitnessGenerator shall not be liable to you or to any third party for any such change, modification, addition, suspension, discontinuance, limitation or restriction.

9.                    PERMITTED USES AND RESTRICTIONS ON USE OF CONTENT/COPYRIGHT.

Whenever used in this Agreement, the term "Content" shall mean any and all articles, databases, software, books, magazines, photographs, images, graphics, illustrations, audio, video, and any other content that is offered to you by or through the Site.

Content available through the Site originates from FitnessGenerator and a variety of third party providers (each, a “TPP”).  FitnessGenerator and each TPP is either the owner or an authorized licensee of such Content and each TPP has licensed FitnessGenerator to make its Content available to you through the Site.  In order to protect and preserve FitnessGenerator’s and the TPPs copyrights and other intellectual property rights in their respective Content, you agree to the following with respect to any specific item of Content that you license or that is otherwise made available to you through the Site: 

a.                    You will abide by all copyright notices and copyright directives relating to or provided with the Content.

b.                    You will not, directly or indirectly, reproduce, copy, transmit, distribute, display, publish or print any Content in any form or medium or (ii) sell, loan or license any Content.

c.                    You will not, in whole or in part, modify, adapt, transform, translate or create any derivative work based on the Content in a manner that would infringe any person’s copyright or other proprietary rights therein.

d.                    You will not remove any copyright notice from the Content.

10.                DISCLAIMER OF WARRANTIES.

a.                    YOUR USE OF THE SITE AND ANY AND ALL INFORMATION CONTAINED THEREIN OR AVAILABLE, DIRECTLY OR INDIRECTLY, THEREFROM, IS AT YOUR SOLE RISK.  THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  FITNESSGENERATOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

b.                    FITNESSGENERATOR MAKES NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) ANY PERSON WILL ACHIEVE A DESIRED RESULT OR RESULTS FROM THE USE OF ANY INFORMATION AVAILABLE ON OR THROUGH THE SITE OR (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS.

c.                    ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FORM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.

d.                    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FITNESSGENERATOR OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

11.               LIMITATION OF LIABILITY .

YOU EXPRESSLY UNDERSTAND AND AGREE THAT FITNESSGENERATOR SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FITNESSGENERATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (iv) PHYSICAL OR EMOTIONAL INJURY OR DISTRESS OR (iv) ANY OTHER MATTER RELATING TO THE SITE AND/OR THE USE OF INFORMATION CONTAINED THEREIN OR AVAILABLE THEREFROM AT ANY TIME.  IN ADDITION, THE AGGREGATE AMOUNT OF FITNESSGENERATOR’S LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF ANY FEES OR CHARGES PAID BY YOU TO FITNESSGENERATOR UNDER THIS AGREEMENT OR THROUGH THE SITE.

12.                EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 10 AND 11 MAY NOT APPLY TO YOU. 

13.                WAIVER, RELEASE OF LIABILITY AND COVENANT NOT-TO-SUE.

In consideration of your being permitted to use the Site, you, on your own behalf and on behalf of your spouse, heirs, trustees, legal representatives, executors and assigns, hereby agree to release FitnessGenerator and its past, present and/or future shareholders, members, managers, partners, trustees, officers, directors, employees, consultants, agents, affiliates, administrators, attorneys, successors and assigns (and their respective past, present and/or future shareholders, members, managers, partners, trustees, officers, directors, employees, consultants, agents, affiliates, administrators, attorneys, successors and assigns) (each, a “Released Party”) from any and all liability for injury, death, damage, cost, expense and other loss suffered or incurred by you as a direct or indirect result of your use of any training, athletic, health, wellness, exercise, fitness or similar information (collectively, “Fitness Information”) that is, directly or indirectly, available from or through the Site at any time.  For purposes of this Agreement, your “use” of Fitness Information shall mean (i) any implementation thereof by you or any person to whom you directly or indirectly furnish such information (collectively, your “clients”) and (ii) the furnishing of Fitness Information by you to any of your clients.

In consideration of your being permitted to use the Site, you hereby agree that you will not, at any time hereafter, commence, maintain, prosecute, participate in as a party, or permit to be filed by any other person on your behalf, any action or proceeding of any kind, judicial or administrative, in any court or agency against any Released Party with respect to any act, omission, statement, information, transaction or occurrence that relates, directly or indirectly, to your use of Fitness Information at any time.

Your acknowledge and agree that your are aware that activities associated with use of the Fitness Information may range from vigorous cardiovascular activity (e.g., aerobics, bicycles, steppers, treadmills, elliptical trainers) to the strenuous exertion of strength training (e.g., free weights, weight machines).  You acknowledge and agree that you understand that these and other physical activities involve certain inherent risks, including but not limited to, death, serious neck and spinal injuries, resulting in complete or partial paralysis, heart attacks, and injury to the bones, joints or muscles.  Your use of the Fitness Information is voluntary and with full knowledge of such inherent participatory dangers and you hereby agree to assume any and all inherent risks of property damage, personal injury, and death.  You agree to advise your clients accordingly.

You understand and agree that you and your clients should consult with your respective personal physicians (i) before utilizing any of the Fitness Information and (ii) during the course of your and their respective use of the Fitness Information if you or they have any concerns or questions about the impact of such use on your or their respective medical condition.  You agree to advise your clients accordingly.  You acknowledge and agree that you are not relying, and will at no time rely, on any Released Party to provide you or your clients with medical advice of any kind (including advice pertaining to your use (or your clients’ use) of the Fitness Information), or to advise you of the medical risks associated with your use (or your clients’ use) of the Fitness Information.  You acknowledge and agree that no Released Party will be liable for any information or advice given to you related to your use (or your clients’ use) of the Fitness Information and that you will not sue any Released Party based on such information or advice.

You acknowledge and agree that the release, waiver and covenant not-to-sue contained herein is intended to be as broad and inclusive as permitted by the laws of Connecticut and agree that if any portion is held invalid, the remainder of this release, waiver and covenant not-to-sue will continue in full legal force and effect.

You acknowledge and agree that you have read this release, waiver and covenant not-to-sue and fully understand that by clicking the “I agree” button relating to this Agreement, you are giving up legal rights and/or remedies that may be otherwise be available to you.

14.                LINKS.

The Site from time to time may contain links to and from various third party sites on the World Wide Web.  You acknowledge that such third party sites are completely independent of the Site and that FitnessGenerator has no responsibility or liability, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through any such site.  If you have any questions or concerns about such third party sites, you should contact the site administrator or web-master of the third-party site.

15.                COMMUNICATIONS BETWEEN FITNESSGENERATOR AND CUSTOMERS.

FitnessGenerator reserves the right to provide you and your clients with information about products and services from FitnessGenerator and third party vendors. FitnessGenerator also reserves the right to send electronic mail to you and your clients for the purpose of informing you and your clients of changes or additions to the Site.

16.                DISCLOSURE OF USAGE AND DEMOGRAPHIC INFORMATION.

FitnessGenerator reserves the right to disclose certain information about you. For more information, please read the Privacy Statement.

17.                FORUMS AND DISCUSSIONS.

From time to time, the Site may conduct or facilitate electronic chat rooms, bulletin boards, news groups, forums and discussions on subjects of interest to its customers (collectively, "Forums"). In addition to any terms or conditions of participation that may be posted with respect to any specific Forum, the following terms and conditions shall apply with respect to any Forum in which you choose to participate and with respect to any content of whatever nature ("Materials") that you upload to, publish or otherwise distribute or transmit (collectively "transmit") in, on or through a Forum or otherwise through the Site.

With respect to any Material that you transmit in, on or through a Forum or otherwise through the Site, you hereby grant to FitnessGenerator a perpetual, royalty-free, irrevocable, non-exclusive and fully sub-licensable right and license to reproduce, modify, adapt, publish translate, create derivative works from, distribute, perform and display such Material (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

You agree not to use Forums or the Site to:

You are solely responsible for the content of any Material that you transmit in, on or through the Forums or otherwise through the Site.  FitnessGenerator does not and cannot review every item of Material transmitted by you.  However, while FitnessGenerator is not responsible for the content of your Material, FitnessGenerator reserves the right to delete, move, or edit Material that FitnessGenerator, in its sole discretion, deems abusive, defamatory, obscene, in violation of copyright or trademark laws, or otherwise unacceptable.  FitnessGenerator also reserves the right to delete, move or edit Material as FitnessGenerator, in its sole discretion, deems necessary or appropriate, including for the formatting purposes of the particular Forum.  You hereby waive any so-called "moral rights" that you may have with respect to any deletions or edits that FitnessGenerator may make to your Materials.  FitnessGenerator may terminate your ability to access and make use of any Forum or the Site generally at any time upon determining that your Material is abusive, defamatory, absence, in violation of copyright or trademark laws or is otherwise unacceptable.   You agree that you must evaluate, and bear all risks associated with, the use of any Material, including any reliance on the accuracy, completeness, or usefulness of such Material.

18.                COMPLIANCE WITH LAW/U.S. AND INTERNATIONAL.

In view of the global nature of the World Wide Web, you agree to comply with all local laws, rules and regulations, including those governing your use of Content and on-line conduct. Specifically, but without limitation, you shall comply with all applicable laws, rules and regulations regarding the transmission of technical data and software exported from the United States or the country in which you reside.

19.                REPRESENTATIONS AND WARRANTIES/INDEMNITY.

You represent, warrant and covenant that:

a.                    You hold, and for so long as you use the Site will hold, a valid, current license to engage in personal training issued by each jurisdiction in which you are engaged in personal training (to the extent required in such jurisdiction) (each, an “Issuing Jurisdiction”);

b.                    Your license is, and for so long as you use the Site will remain, in good standing in each Issuing Jurisdiction;

c.                    Your use of the Fitness Information (including, without limitation, in the development of training programs for your clients) will at all times be consistent with proper practices recognized in the personal training industry; and

d.                    No Materials of any kind submitted through your account will (a) violate or infringe upon the rights of any third party (including copyright, trademark, privacy or other personal or proprietary rights) or (b) contain libelous, defamatory or otherwise unlawful material.

You hereby agree to indemnify, defend and hold harmless FitnessGenerator, its subsidiaries, affiliates, employees, agents, co-branders and other partners (collectively, the "Indemnified Parties") from and against any and all liability, damage, cost and expense (including reasonable attorneys' fees) incurred by the Indemnified Parties (or any of them) in connection with any claim arising out of or relating to (i) your use of the Site or any Fitness Information, (ii) use of the Site or any Fitness Information by any of your clients, (iii) a breach by you of any of your representations, warranties or covenants in this Section 19 or elsewhere in this Agreement, (iv) your connection to the Site or (v) any violation of the TOS by you or any user of your account (including your clients).  You agree to fully cooperate in the defense of any such claim.

20.                TERMINATION BY YOU.

You may terminate your account, effective at the end of the period for which you have subscribed to the Site, by going to http://RyanLeeSupport.com and choosing the cancellation option. Upon termination, you will receive an automated confirmation via e-mail that the request was received.  You are responsible for all membership and other fees and charges incurred by you or by any user of your account up to the time the account is deactivated.

21.                TERMINATION BY FITNESSGENERATOR.

You agree that FitnessGenerator, in its sole discretion, may terminate your password, your account and/or your use of the Site, and remove and discard any Material within the Site, at any time and for any reason, including, without limitation, for lack of use of the Site or if FitnessGenerator believes that you have violated or acted inconsistently with the letter or spirit of the TOS.  FitnessGenerator may also, in its sole discretion and at any time, discontinue providing the Site, or any part thereof, with or without notice.  You agree that any termination of your access to the Site under any provision of the TOS may be effected without prior notice, and acknowledge and agree that FitnessGenerator may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Site.  Further, you agree that FitnessGenerator shall not be liable to you or any third-party for any termination of your access to the Site; provided that FitnessGenerator refunds to you a pro rata portion of the membership fees paid by you for periods after the effective date of the termination.

22.                NOTICES TO YOU.

Notices may be sent to you by e-mail, first class mail or overnight courier.  FitnessGenerator may also provide notices of changes to the TOS or other matters by displaying such notices, or providing links to such notices, on the Site.

23.                NO WAIVER/SEVERABILITY.

FitnessGenerator's failure to exercise or enforce any right, provision, or remedy hereunder shall not constitute a waiver of such right, provision or remedy.  If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should try to give effect to the parties' intention as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.

24.                ENTIRE AGREEMENT.

This Agreement and the TOS stated herein constitute the entire agreement between you and FitnessGenerator with respect to your use of the Site and of the products and services that you obtain through the Site.  This Agreement merges and/or supersedes any other agreements and understandings between you and FitnessGenerator, including any prior versions of the TOS.

25.                ENFORCEMENT COSTS.

If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees, sales and use taxes, court costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled.  Attorneys' fees shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes and all other charges billed by the attorney to the prevailing party.

26.                CHOICE OF LAW/STATUTE OF LIMITATIONS.

This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Connecticut.  Any action to enforce this Agreement shall be brought in the federal or state courts located in the State of Connecticut.  You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.