Terms of service.
WEBSITE TERMS AND CONDITIONS OF USE
Last Revised: 12/18/2023
Effective Date: 01/01/2024
These Website Terms and Conditions of Use (the “Terms and Conditions”) apply to the Gym Cube website located at www.thegymcube.com (the “Site”). The Site is the property of Gym Cube, LLC, a North Carolina limited liability company (“Gym Cube”). Please read these Terms and Conditions carefully.
BY ACCESSING THIS SITE, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, THESE TERMS AND CONDITIONS, WHICH FORM A LEGALLY BINDING AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THE SITE.
The Site is intended to be used solely by individuals 18 years of age and older.
1. User Rights and Responsibilities.
You may not use this Site to gain unauthorized access to Gym Cube’s networks or computer systems or to engage in any activity that disrupts or otherwise interferes or tampers with the Site (and associated servers or networks connected to the Site).
You may choose to submit information to Gym Cube through our Site for various reasons, such as to manage your membership or account. By submitting information to Gym Cube, you are authorizing us to utilize this information for the purpose for which it was submitted and for such other purposes as set out in our Privacy Policy. We may or may not review all or any information submitted to us.
Except for personally identifiable information such as names, addresses, and financial information, unsolicited information and content submitted to this Site is assigned to Gym Cube free of charge, together with all worldwide rights, title and interest in all copyrights and other intellectual property rights in such submission and Gym Cube and its affiliates and related entities may use, sublicense, adapt, distribute, publicly perform, publish, display or delete such submission at its sole discretion. By sending any unsolicited submission to Gym Cube, you waive the right to make any claim against Gym Cube, its parents or affiliates related to use of the submission.
By uploading or submitting any content you represent and warrant that any uploaded material does not: infringe any copyright or other intellectual property or other rights of any other person; contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; includes a photograph of another person without that person’s consent; violates the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and Conditions and our Privacy Policy; contains a virus or other harmful component; promote any illegal activity, or advocate, promote, or assist any unlawful act; involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising; give the impression that the content emanates from or is endorsed by Gym Cube or any other person or entity, if this is not the case. Gym Cube reserves the right to remove any content that it deems, in its sole discretion, to violate these terms.
You understand that when using the Site, you may be exposed to third party content for which Gym Cube is not responsible for the accuracy, usefulness, or intellectual property rights relating thereto, and accordingly waive all claims, rights, or remedies against Gym Cube with respect to such third-party content, except as provided herein for copyright infringement notices. Gym Cube does not proactively screen, monitor, or control user uploaded content and thus does not endorse any content or opinion expressed in any content. Gym Cube expressly disclaims all liability in connection with any such third-party content. As set forth in other provisions of these Terms and Conditions, Gym Cube may investigate any reported hosted content in violation of these Terms and Conditions or any laws or regulations and may determine, in its sole discretion, whether to remove such content.
2. Medical Disclaimer.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THE SERVICE OR ANY OTHER EXERCISE OR WEIGHT LOSS PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, HAVE A BONE OR JOINT PROBLEM OR OTHER MEDICAL CONDITION THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY OR DIET. DO NOT USE THE SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN, OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING OR FASTING, YOU SHOULD STOP IMMEDIATELY. THE SERVICE OFFERS GENERAL HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY OF THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH- CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.
IF YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.
3. Legal Compliance.
You shall comply with all applicable laws, statutes, ordinances, and regulations regarding your use of the Site. If you provide us any information through the Site, you agree to provide true, accurate, current and complete information about yourself. You agree not to attempt to upload or transmit through the Site any computer viruses, trojan horses, worms, or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or system. Any unauthorized modification, tampering or change of any information, or any interference with the availability of or access to this Site is strictly prohibited. If you become aware of misuse of this Site by any person, then please contact Gym Cube at support@thegymcube.com with your concerns. Gym Cube reserves all rights and remedies available to it.
4. Privacy Policy.
By agreeing to these Terms and Conditions, you agree to the terms of our Privacy Policy, which is located at www.thegymcube.com and is incorporated herein by reference. Before using this Site, please read through the Terms and Conditions and Privacy Policy carefully. All personal information provided to us because of your use of this Site will be handled in accordance with our Privacy Policy.
5. Intellectual Property Rights.
Gym Cube Content and Third-Party Content are protected by copyright, trademark, patent, trade secret and other laws. Gym Cube and its third-party licensors own and retain their respective rights, title, and interest in and to their respective content.
You acknowledge that the Gym Cube Site contains software, graphics, photos, videos, know-how, product ideas, comments, and other material (collectively, “Content”) that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Gym Cube-generated content and content developed for Gym Cube by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, Gym Cube owns a copyright in the selection, coordination, arrangement, and enhancement of all Content in the Gym Cube Site. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.
The Gym Cube name, logos and affiliated applications and technologies are the exclusive property of Gym Cube, Inc. All other trademarks appearing on the Site are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Site. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks, or service marks without our express prior written consent.
Gym Cube owns and retains all proprietary rights in the Site and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site without first obtaining the prior written consent of Gym Cube or, if such property is not owned by Gym Cube, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure, or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
6. Warranty Disclaimer.
The Site is provided “AS IS” and on an “AS AVAILABLE BASIS”. To the extent permitted by law, Gym Cube and our affiliates, parents, and successors and each of our and their members, employees, assignees, officers, agents and directors (collectively, the “Gym Cube Parties”) (i) disclaim all warranties and terms, express or implied, with respect to the Site, including warranties, terms or representations as to the availability, operation, performance and/or use of the Site, or any other services or materials on or accessed via the Site, including any warranties or terms of merchantability, fitness for a particular purpose, title, non-infringement and any implied warranties, terms or indemnification arising from course of dealing, course of performance or usage in trade and (ii) will not be liable for any indirect, special, incidental, exemplary, punitive or consequential damages, business interruption or loss of profits, or damages for lost time, goodwill or data, even if advised of the possibility of such damages and regardless of the form of action, whether in contract, tort, strict liability or otherwise. To the extent permitted by law, you, on your own behalf and on behalf of your employees, agents, guests and invitees, (i) waive any and all claims, liabilities, costs, damages, expenses and rights, including reasonable attorneys’ fees (“Claims”) against the Gym Cube Parties resulting from your use of the Site and (ii) release the Gym Cube Parties from any such Claims; provided, however, that such waiver of claims shall not apply to the extent such Claims arise from the gross negligence, willful misconduct, or fraud of the Gym Cube Parties. You shall and hereby do waive your rights under the law of any jurisdiction, which provides in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or settlement with the debtor or released party.”
7. Limitation of Liability.
To the fullest extent permitted by applicable laws, the Gym Cube Parties will in no event be liable to you or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from or in connection with any use of the Site and/or the Services, and/or any website with which they are linked, and/or any content, information, products or services accessible through the Site and/or the Services, even if any of the Gym Cube Parties have been advised of the possibility of such losses or damages.
AS NOTED HEREIN NEITHER GYM CUBE, NOR ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, NOR SHALL GYM CUBE ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:
EXCEPT FOR LIABILITY ARISING OUT OF GYM CUBE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, THE SITE MATERIALS, THE SERVICES OR ANY USER CONTENT; UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE, OR SITES LINKED TO BY THIS SITE, BY ANY THIRD PARTY; AND/OR ERRORS OR OMISSIONS IN ANY CONTENT MADE AVAILABLE BY GYM CUBE OR OUR USERS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVENT SHALL GYM CUBE’S AGGREGATE LIABILITY EXCEED $100.00. THIS ALLOCATION OF RISK UNDER THESE TERMS IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS SHALL BE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS SET FORTH IN THESE TERMS. THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
EACH PROVISION OF THESE TERMS AND CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN YOU AND GYM CUBE. THIS ALLOCATION IS REFLECTED IN PRICING OFFERED BY GYM CUBE TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GYM CUBE. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Termination.
Gym Cube reserves the right to immediately terminate your use of, or access to, this Site at any time for any reason in its sole discretion. Gym Cube further reserves the right to discontinue this Site or any portion thereof at any time without notice.
9. Third-Party Links and Services.
Gym Cube is not responsible for the content or practices of third-party websites that may be linked to this Site. This Site may also be linked to other web sites operated by companies affiliated or connected with Gym Cube. When visiting other websites, however, you are subject to and should review each website’s individual terms and conditions and privacy policy. Gym Cube takes no responsibility for third party advertisements which are posted on this Site, nor does it take any responsibility for the goods or services provided by such advertisers.
10. Indemnification.
To the fullest extent permitted by law, you agree to indemnify, defend, and hold harmless the Gym Cube Parties from all third-party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your breach of these Terms and Conditions, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Gym Cube Parties will use their reasonable best efforts to notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost. To the extent permitted by law, you will indemnify and hold harmless the Gym Cube Parties from and against all Claims resulting from any breach of these Terms and Conditions by you or your employees or guests, or your or their agents or invitees or any of your or their actions or omissions, and Gym Cube Parties will have sole control over the defense of any such Claims. You shall not make any settlement that requires a material act or admission by any of the Gym Cube Parties, imposes any obligation upon any of the Gym Cube Parties or does not contain a full and unconditional release of the Gym Cube Parties, without our written consent. None of the Gym Cube Parties shall be liable for any settlement made without its prior written consent.
11. Survival.
The provisions of this Agreement including but not limited to sections 2, 3, 6, 7, 8, 10, and 12(a-m) shall survive the termination of this Agreement, your account, and/or your use of the Service to the extent necessary to effectuate the terms contained herein.
12. General Provisions.
a. Amendment. We may amend these Terms and Conditions from time to time. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means. You acknowledge that an email to the email address provided at registration, which notifies you of such changes, shall constitute reasonable means. Your continued use of the Site after we post any amendments to these Terms and Conditions will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue your access to and use of the Site.
b. No Waiver. The failure of Gym Cube to exercise or enforce any right and/or remedy under these Terms and Conditions shall not constitute a waiver of such right and/or remedy.
c. Section Headings. Section and subsection headings are for convenience only, and not for use in interpreting these Terms and Conditions.
d. Statute of Limitations. You acknowledge and 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 these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
e. Relationship of the Parties. You and Gym Cube acknowledge and agree that they are independently contracting parties dealing at arm’s length with each other in connection with the licensing of intellectual property rights and the provision of services. No partnership, joint venture, joint authorship, employment, fiduciary, agency, or other relationship is created between them.
f. Binding on Successors. These Terms and Conditions shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors and/or assigns of the parties, as applicable. For avoidance of doubt, you acknowledge and agree that Gym Cube is fully authorized to assign, sublicense and/or otherwise convey and transfer these Terms and Conditions and/or any of its rights under these Terms and Conditions at any time, in its sole and absolute discretion, and without compensation of any kind to you.
g. You Agree to Cooperate with Us. From time to time, we may investigate any actual, alleged or potential violations of these Terms and Conditions. You agree to cooperate fully in any of these inquiries. You waive any and all rights against the Gym Cube Parties and agree to hold them harmless in connection with any claims relating to any action taken by us as part of our investigation.
h. Governing Law. These Terms and Conditions and the relationship between you and Gym Cube shall be governed by the laws of the State of North Carolina without regard to its conflict of law provisions.
i. Agree to Arbitrate. Except as otherwise expressly set forth herein, any controversy arising out of or relating to this Agreement, or the breach of this Agreement, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction. The prevailing party shall be entitled to all costs of arbitration including, but not limited to, reasonable attorneys’ fees. The parties further agree that they shall be entitled to discovery in the same manner as though the dispute were within the jurisdiction of the State of North Carolina and that the statute of limitations shall be applied in the same manner as provided for in this Agreement. The parties agree that all arbitration shall be conducted in Pender County, North Carolina.
j. Entire Agreement. These Terms and Conditions, together with any other terms and conditions referenced herein (including without limitation the Privacy Policy), constitutes the entire agreement between you and Gym Cube and governs your use of the Site, superseding any prior agreements between you and Gym Cube with respect to the Site.
k. Severability. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you. In any such case, and/or if any of these Terms and Conditions are held to be invalid for any reason whatsoever, this these Terms and Conditions shall remain in full force and effect on its remaining terms and conditions unless and until terminated by Gym Cube. Furthermore, if any of these Terms and Conditions are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the intentions of the parties as reflected in the invalidated provision.
l. Related Agreements. You acknowledge that your use of the Site is also subject to our Privacy Policy. Occasionally, additional features, tools or services may be made available to you through the Site. Additional terms may apply to such additional services, and to the extent you are receiving any additional services, the applicable additional terms are hereby incorporated into these Terms and Conditions.
m. Contact; Notices and Questions. If you have any questions regarding these Terms and Conditions, please contact us by email at support@thegymcube.com, or by mail at The Gym Cube, LLC, 146 Heron Cove Rd, Hampstead NC 28443. Except as otherwise specified elsewhere in these Terms and Conditions, notices to Gym Cube may be given at the foregoing email and postal addresses, and notices to you may be given at the address provided to us at the time of registration and/or the purchase Services from Gym Cube.
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