Terms of Service

This policy was updated on March 1, 2020.

1. Accepting these Terms

PLEASE READ THIS TERMS OF SERVICE CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THIS WEBSITE AND RELATED SERVICES. YOU UNDERSTAND AND AGREE THAT BY ACCEPTING THIS TERMS OF SERVICE, AND/OR USING ANY PART OF THE SERVICES PROVIDED BY OR THROUGH THIS WEBSITE, YOU ARE AGREEING TO BE LEGALLY BOUND BY ALL OF THESE TERMS AND CONDITIONS, WHICH INCLUDES A LIMITED LICENSE, DISCLAIMERS OF WARRANTY, LIMITATIONS OF LIABILITY AND MANDATORY ARBITRATION OF DISPUTES AND CLASS ACTION AND JURY WAIVERS. IF YOU DO NOT AGREE TO THESE TERMS, YOU WILL HAVE NO LICENSE TO USE THIS WEBSITE OR ANY RELATED SERVICES.  

You have arrived at [~ https://fitswop.com ~] and/or are otherwise interacting with our Platform (defined below), which is owned and operated by FitSwop, LLC and its affiliated entities (collectively, “FitSwop,” “we,” “our,” or “us”). This Terms of Service (the “Terms”) govern your use of any online service (e.g., website or mobile app) that we link to these Terms (each, a “Site”), and also applies to all features, widgets, plug-ins, applications, content, downloads and other services made available by us through the Site (collectively with the Site, the “Platform”), regardless of how you access or use it, whether via computer, mobile device or otherwise (each, a “Device”).  The Platform offers users the ability to buy, sell, and license certain products (“Products”) made available for sale or license by other users on the Platform.

These Terms are a legally binding agreement between you (i.e., the corporation, business, other entity, or person who accesses and uses the Platform) and FitSwop, and sets forth your rights and obligations with respect to the use of the Platform. Each time you access and/or use the Platform, you agree to be bound by and comply with the Terms and any Additional Terms (defined below) then posted. Therefore, you may NOT use the Platform if you do not agree. Without the conditions that are set forth in these Terms, we would not make the Platform available to you.

In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Platform or to a service or product offered via the Platform (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

2. Registration, User Information, Privacy and Profile Pages

A. Registration

In order to access or use some of the features on the Platform, you must first register through our online registration process at [~ https://FitSwop.com ~]. If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive (while we have no obligation to review and accept any username or password, we may reject the use of any password, username, or e-mail address for any other reason in our sole discretion); (ii) You will provide true, accurate, current, and complete registration information about yourself, and if applicable, your Product(s) in connection with the registration process and, as permitted, to maintain and update it including on your Profile Page (defined below), continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Platform using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.

B. User Information

You acknowledge and agree that you are solely responsible for the accuracy and content of all such personal information, and you agree to keep it up to date. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account without notice. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.

C. Data & Privacy

In the course of using the Platform or certain services or functionalities made available on or through the Site, You may provide certain personal information to us. Our policies for collection and use of such personal information are set forth in our Privacy Policy for the Site (“Privacy Policy”), located at [~ https://FitSwop.com/privacy-policy ~]. Our Privacy Policy is incorporated herein by this reference.

D. Profiles

After completing the registration process, you will then be able to create a profile page to showcase and provide information about your Products and your company information (the “Profile Page”). Your Profile Page may not include any form of prohibited User-Generated Content (defined below), as outlined in these Terms. We may offer you the ability to set preferences relating to your Profile Page or Platform activities, but settings may not be error free, and options may change from time-to-time. We assume no responsibility content you upload to your Profile Page material.

Profile Pages may only be set up by an authorized representative of the individual that is the subject of the Profile Page. We do not review Profile Pages to determine if they were created by an appropriate party, and we are not responsible for any unauthorized Profile Pages that may appear on the Platform. If there is any dispute as to whether a Profile Page has been created or is being maintained by an authorized representative of the individual who is the subject of that Profile Page, then we shall have the sole right, but are not obligated, to resolve such dispute as we determine is appropriate in our sole discretion. Such resolution may include, without limitation, deleting or disabling access to Profile Pages, or any portion thereof, at any time without notice. You are responsible for all use of your Profile Pages, or other actions, completed using your account, including users that you have invited to collaborate on your account.

3. Platform Content, Ownership, Limited License, and Rights of Others

A. Content

The Platform contains a variety of:

(i) Materials and other items relating to FitSwop and its products and services, and similar items from our licensors, third parties, and users, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Platform, and the compilation, assembly, and arrangement of the materials of the Platform and any and all copyrightable material (including source and object code);

(ii) Trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of FitSwop (collectively, “Trademarks”); and

(iii) Other forms of intellectual property (all of the foregoing, collectively “Content”).

B. Ownership

The Platform and the Content are owned or controlled by FitSwop and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Platform is the property of FitSwop or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. FitSwop owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Platform.

C. Limited License

Subject to your strict compliance with these Terms and the Additional Terms, FitSwop grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download (temporary storage only), display, view, use, play, and/or print the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a Device for your personal, or internal business use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.

D. Rights of Others

In using the Platform, you must respect the intellectual property and other rights of FitSwop and others. Your unauthorized use of Content or Products may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. FitSwop respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Platform, then please see Sections 8 and 9 below.

4. Content You Submit and Community Usage Rules

A.   Trademark License

In order to use the Platform, you hereby grant to FitSwop, and represent and warrant that you have the right to grant to FitSwop, a revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable, limited right and license to use, reproduce, and display as applicable, the names, logos, marks, nicknames, slogans, artwork, trademarks, trade names, service marks that at any time were or are owned, applied to be registered or registered, controlled, cleared for use by, or on behalf of, or licensed by you in connection with your use of the Platform (collectively, the “User Marks”) and any User-Generated Content provided by you such as any photographs and audiovisual content featuring your company and/or your products with your User Marks in connection with the Platform.

B.   User-Generated Content

FitSwop may now or in the future offer users of the Platform the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Platform messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, but excluding FitSwop Content included therein, “User-Generated Content”). FitSwop may allow you to do this through your Profile Page, forums, blogs, message boards, social networking environments, content creation tools, social communities, contact us tools, e-mail, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.

C.   Non-Confidentiality of Your User-Generated Content

(i) Except as otherwise described in the Platform’s posted Privacy Policy or any Additional Terms, you agree that FitSwop does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon our request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk.

(ii) In your communications with FitSwop, please keep in mind that we do not seek any unsolicited ideas or materials for suggested improvements to the Platform or other FitSwop products or services, including, without limitation, ideas, concepts, inventions, or designs (collectively, “Unsolicited Ideas and Materials”). You have no obligation to provide Unsolicited Ideas and Materials. If you provide Unsolicited Ideas and Materials to us, then we will have a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, transferable, sublicensable right and license to fully use, practice, and exploit such Unsolicited Ideas and Materials for any purpose whatsoever in any medium now known or hereinafter developed.

D.   License to FitSwop of Your User-Generated Content

Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your User-Generated Content, you hereby grant to FitSwop, and you agree to grant to FitSwop, the non-exclusive, worldwide, royalty-free right and license to use, copy, display, reproduce, disclose, publicly perform, transmit, publish, broadcast, translate, and otherwise use your User-Generated Content, to provide the Platform and related services that you may request. Without limitation, the granted rights include the right to configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials.

E.   Exclusive Right to Manage Our Platform

FitSwop may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and FitSwop may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 5). Such User-Generated Content submitted by you or others need not be maintained on the Platform by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Platform or elsewhere.

F.    FITSWOP CANNOT AND DOES NOT ASSUME ANY LIABILITY FOR USER-GENERATED CONTENT, INCLUDING BUT NOT LIMITED TO, INCOMPLETENESS, INACCURACIES, OR INFRINGING MATERIALS, AND, AS BETWEEN YOU AND FITSWOP, YOU HEREBY ASSUME ALL RISK OF HARM OR INJURY RESULTING FROM ANY USE OR RELIANCE ON SUCH USER-GENERATED CONTENT.

5. Representations and Warranties Related to Your User-Generated Content and Products

A.   Each time you submit any User-Generated Content, you represent and warrant that:

(i) You are at least the age of majority in the jurisdiction in which you reside;

(ii) You are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant FitSwop the rights to it that you are granting by these Terms and any Additional Terms, all without any FitSwop obligation to obtain consent of any third party and without creating any obligation or liability of FitSwop;

(iii) The User-Generated Content is accurate;

(iv) The User-Generated Content does not and, as to our permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and

(v) The User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.

B.   If you post a Product and/or Company information, you represent and warrant that:

(i) Your User-Generated Content about your Product(s) are truthful and not misleading, deceptive or materially inaccurate in any way, including in relation to the availability, nature, terms or conditions or any other matter relating to the Product being offered;

(ii) You agree (a) to provide the Platform users with such other information as is reasonably necessary to ensure that the Platform user is fully informed as to the intended and proper use of the Product, including any lists of ingredients, components or materials and any applicable instruction booklets and/or warning labels concerning the Product, and (b) to use commercially reasonable efforts to respond to additional Platform user Product inquiries;

(iii) Your Product has been produced, manufactured, packaged and supplied strictly in accordance with the relevant consumer protection and product safety regulations and good manufacturing practices and that it complies, and you comply, with all applicable laws and codes of conduct;

(iv) Your User-Generated Content does not contain links to any external website other than specified in the website field provided by us, unless we have given our prior written consent;

(v) Your User-Generated Content is posted within the appropriate category(s). If we consider that you have posted a Product to an incorrect or inappropriate category, we may re-classify and re-post that post as we consider appropriate; and

(vi) Your Product(s) has been created, produced, designed, manufactured, packaged, and supplied in a way that does not infringe any intellectual property rights of any third party.

C.    If you supply an edible Product, you will ensure that, at a minimum:

(i) It has been produced, manufactured, packaged and supplied strictly in accordance with all relevant food safety and hygiene regulations and applicable laws and good manufacturing practices with any relevant use by dates clearly shown; and

(ii) It has not been adulterated or contaminated, and is of good quality, edible, and otherwise fit for human consumption.

6. Community Usage Rules

As a user of the Platform, these Community Usage Rules (“Rules”) set forth the conduct that is required of users of the Platform’s online communities (“Communities”).

A.   Your participation in the Communities is subject to all of the Terms, including these Rules:

(i) All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to FitSwop.

(ii) If you choose to submit photos to the Platform, link to embedded videos, or include other images of real people, then make sure you have their express permission to submit it.

(iii) All of your Platform activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.

(iv) Don’t copy the Platform or use the Platform, or any element thereof, to create (or allow third parties to create) any software product capable of emulating or competing with the Platform (or facilitating the emulation of or competition with the Platform), or use any of the Platform’s components, files, modules, audio-visual content, or related licensed materials separately from the Platform.

(v) Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.

(vi) Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your Products or identity or affiliation with a person or company.

(vii) User-Generated Content that you submit on the Platform within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.

(viii) Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by FitSwop.

(ix) Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Platform or any computer or other Device.

If you submit User-Generated Content that FitSwop reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Platform.

B.   Your Interactions with Other Users; Disputes

You are solely responsible for your interaction with other users of the Platform, whether online or offline. We are not responsible or liable for the conduct or content of any user, including but not limited to those you may invite to collaborate on your FitSwop account. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. You hereby hold us harmless from and against any dispute that you may have with any other user of the Platform.

C.   Alerting Us of Violations

If you discover any content that violates these Terms, then you may report it to us here. For alleged infringements of intellectual property rights, see Section 8 and 9, below.

D.   FITSWOP CANNOT AND DOES NOT ASSURE THAT OTHER USERS ARE OR WILL BE COMPLYING WITH THE FOREGOING RULES OR ANY OTHER PROVISIONS OF THIS AGREEMENT, AND, AS BETWEEN YOU AND FITSWOP, YOU HEREBY ASSUME ALL RISK OF HARM OR INJURY RESULTING FROM ANY SUCH LACK OF COMPLIANCE.

 

7. Platform Use Restrictions

A.   Platform Use Restrictions

You agree that you will not: (i) use any meta tags or any other “hidden text” utilizing any Trademarks; (ii) engage in any activities through or in connection with the Platform that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to FitSwop; (iii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, services, or processes accessible through any portion of the Platform; (iv) engage in any activity that interferes with a user’s access to the Platform or the proper operation of the Platform, or otherwise causes harm to the Platform, FitSwop, or other users of the Platform; (v) interfere with or circumvent any security feature of the Platform or any feature that restricts or enforces limitations on use of or access to the Platform, the Content, or the User-Generated Content; (vi) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Platform, including e-mail addresses, without the express consent of such users); (vii) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to the Platform, through password mining or any other means; or (vii) otherwise violate these Terms or any Additional Terms.

B.   Content Use Restrictions

You also agree that, in using the Platform: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Platform by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with us or any of our or our licensors’ or users’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of FitSwop or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

C.   Availability of Platform and Content

FitSwop may immediately suspend or terminate the availability of the Platform and Content (and any elements and features of them), in whole or in part, for any reason, in our sole discretion, and without advance notice or liability.

D.   Reservation of All Rights Not Granted as to Content and Platform

These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Platform. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by FitSwop and its licensors and other third parties. Any unauthorized use of any Content or the Platform for any purpose is prohibited.

8. Subscriptions for Sellers

The Platform uses a free product subscription plan for users to create a Profile Page and load Products. In addition, users have the option to purchase a premium plan (the “Premium Plan“). You may purchase the Premium Plan online using any major credit card (unless other payment terms are agreed). The amounts charged to such credit card shown at the time of the transaction. Premium Plans will auto renew at the end of the subscription period unless they are suspended by you.  We may change our prices at any time without notice to you for any renewal period.

We use a secure third party service provider to process all payments you make from us. You should read and understand the terms on which that service provider accepts and processes that payment, a link to which is provided to you as part of the purchase process. By transacting on the Site, you are required to have read and accepted those terms. We are not responsible to you for any breach of those terms by that service provider.

If we suspend or terminate any usage subscriptions, then you will forfeit the suspended or terminated subscriptions, except as may be set forth in any Additional Terms (such as any refund policies that may apply to a subscription service). Likewise, except as may be set forth in any Additional Terms or as required by applicable law, or providing you any credit or refund or any other sum, in the event of our modification of any usage subscriptions, or for loss or damage due to error, or any other reason.

You are solely responsible for payment of all sales, use, or other taxes assessed against or associated with your subscription or any other services performed for us or other user under this Agreement.

9. Procedure for Alleging Copyright Infringement

A. DMCA Notice

FitSwop will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Platform, then you may send us a written notice that must include all of the following:

(i) a subject line that says: “DMCA Copyright Infringement Notice”;

(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Platform on which the material appears);

(iv) your full name, address, telephone number, and e-mail address;

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii) your electronic or physical signature.

All DMCA notices should be sent to our designated agent as follows:

Mailing Address:

Attn:   
DMCA Agent, FitSwop LLC.
123 Buttermilk Pike
P.O. Box 176331
Lakeside Park, KY 41017

Email Address: [email protected]

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Without limiting our other rights, FitSwop may, in appropriate circumstances, terminate an infringer’s access to the Platform and any other website owned or operated by FitSwop.

B. Counter-Notification

If access on the Platform to a work that you submitted to FitSwop is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

(i) a subject line that says: “DMCA Counter-Notification”;

(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Platform from which the material was removed or access to it disabled);

(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

(iv) your full name, address, telephone number, e-mail address, and the username of your account;

(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(vi) your electronic or physical signature. Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Platform. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

10. Procedure for Alleging Infringement of Other Intellectual Property

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Platform, then you may send us a written notice to the addresses set forth above that includes all of the following:

(i) a legend or subject line that says: “Intellectual Property Infringement Notice”;

(ii) a description of the intellectual property that you claim has been infringed;

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Platform on which the material appears);

(iv) your full name, address, telephone number, and e-mail address;

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and

(vii) your electronic or physical signature.

We will act on such notices in our sole discretion. Any user of the Platform that fails to respond satisfactorily to FitSwop with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

11. Notices, Questions and Customer Platform

You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Platform, or in another reasonable manner; and (ii) we may contact you by mail or e-mail sent to the address provided by you. You agree to promptly notify us if you change your e-mail or mailing address by updating your Profile Settings. All legal notices to us must be sent to 123 Buttermilk Pike P.O. Box 176331, Lakeside Park, KY 41017 Attn: Legal Department.

If you have a question regarding using the Platform, you may contact FitSwop Customer Support by sending an e-mail to [email protected]. You acknowledge that the provision of customer support is at our sole discretion and that we have no obligation to provide you with customer support of any kind. We may provide you with customer support from time to time, at our sole discretion, provided that you have created an account and that you submit your customer support inquiries using such account.

12. Product Specifications

We do not warrant that product specifications, pricing, or other content on the Platform is complete, accurate, reliable, current, or error-free. In the event of any errors relating to your pricing or Product specifications, FitSwop shall have the right to refuse or cancel your subscription and/or access to the Platform in our sole discretion.

13. Links by You to the Platform

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Platform, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with FitSwop or cause any other confusion, and (c) the links and the content on your website do not portray FitSwop or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to FitSwop. FitSwop reserves the right to suspend or prohibit linking to the Platform for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

14. Third-Party Sites; Dealings with Retailers

A.   Third-Party Content and Sites

The Platform may contain third party plug-ins and/or applications, and/or links to third-party websites that are not owned, controlled or operated by FitSwop, and the Platform may also include links to third-party ads on the Platform or otherwise, to or from third-party websites (collectively, “Third-Party Sites”), including websites operated by retailers, licensors, licensees, and certain other third parties who may have business relationships with FitSwop. FitSwop has no control over the content, operations, policies, terms, or other elements of Third-Party Sites, and FitSwop does not assume any obligation to review any Third-Party Sites. FitSwop does not necessarily endorse, approve, or sponsor any Third-Party Sites, or any third-party content, information, materials, products, services, or other items. Furthermore, FitSwop is not responsible for the quality or delivery of the services offered, accessed, obtained by or advertised at such Third-Party Sites. Finally, FitSwop will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Sites. FitSwop disclaims all liability in connection therewith.

B.   Dealings between Users

FitSwop transacts with users of all shapes and sizes and in many forms. Any interactions, correspondence, transactions, and other dealings that you have with any third parties, including users, found on or through the Platform (including on or via Third-Party Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party content, advertisements, payments, delivery of goods, warranties (including Product warranties), privacy and data security, and the like). FitSwop disclaims all liability, you hereby hold us harmless, in connection therewith.

15. Product License

A.     License

Platform users own and maintain the intellectual property rights in their Products and grant users licenses to use such Products for limited use as described in this section. When you purchase a Product, you’re purchasing a license to use the Product in accordance with these Terms. All downloadable and digitally consumed Products can only be used in accordance with the license granted herein as well as any additional terms the seller provides, to the extent that such terms do not conflict with these Terms, except that sellers may grant certain additional rights to their Products. Each license that may only be assigned to a single specific individual user (“Assignee”) for that Assignee’s lifetime use. Licenses are non-transferable and may not be used by any other individual or reallocated.   Except as otherwise stated in these Terms, the seller grants to the purchasing user, for use by one Assignee, a non-exclusive, non-transferable, non-sublicensable, worldwide, limited license to use the Product for the purposes and under the conditions described below. The seller may grant additional rights at their discretion. If you purchase a license, the seller permits you to assign use of the Product to one Assignee. Once an Assignee has been designated, the Product cannot be used by any other individual without purchase of an additional license. You may not reallocate a license from one user to another or share the Product with additional users unless you purchase an additional license. As an Assignee of a license, the seller permits you to: (i) use the Product for personal, or internal business use only (“Personal Use”); and (ii) print and make copies of downloadable Products as necessary for Personal Use. Hard Products and video Products may not be copied, shared, or otherwise reproduced. Unless otherwise expressly permitted by the seller: you may not use the Product, in part or in whole, for commercial purposes. This means you can’t sell it, use it for advertising or marketing purposes, or use it in any other way in connection with a business or profit making activity. You may not post or otherwise make the Product available on any website. You may not share, send, sell, sublicense, or transfer the Product to someone else for their own Personal Use unless you purchase an additional license for each individual you will share it with. Each license is for use by one specific individual.

B.     Limitation

We cannot guarantee continuous access to any Product through our Platform. If at any time, we stop hosting a Product for any reason or you or FitSwop terminates, suspends, downgrades, or otherwise limits your access to the Platform, your ability to access the Product through our Platform may be terminated. It’s your responsibility to maintain and store a copy of downloadable Products on your device to ensure future access. If you purchase access to a Product in the format of streaming video or other non-downloadable formats, your license will expire if you or FitSwop closes your account, or if we stop hosting the Product for any reason.

C.     Your Grant

When a user purchases a license to use your Product or downloads free Products from you, you allow them to use your Product as described in Section 14(a) of these Terms above, and any other terms you expressly set forth in writing in connection with such Products (as long as any additional terms do not conflict with these Terms). For clarity, you may, at your discretion and in accordance with these Terms and any other policies set forth by us, grant additional rights to purchasers of your Products, but you may not enforce limitations on such use that are inconsistent with the rights granted herein.

16. Payment

A.   Purchasing

All sales are considered final and nonrefundable once an order is submitted. We may, in our sole discretion, modify our refund policy or, on a case-by-case basis, issue a refund for a reason that we determine as necessary. Sellers can view a refund and any applicable refund note in their account. Sellers may authorize a full or partial refund for any reason by contacting us.  We may offer a variety of payment methods to pay for purchases, such as a credit and debit card, PayPal Account, or otherwise trough a trusted third party payment processor. We accept payments in United States Dollars (USD). Cash payments and payments in other currencies will not be accepted. We may change or add to our accepted payment methods at any time and we are not obligated to accept payment by any means other than those accepted at the time of your purchase.  When you buy something on the Platform (including Products, accounts, memberships, and other products or services we may offer), you represent and warrant that you’re authorized to make the purchase and to use the payment method and billing information you’ve provided. You further agree that we may charge your payment method the amount due, which will be in U.S. Dollars. We are not responsible for any additional fees you may be charged by your financial institution such as international transaction fees or overdraft fees. If we receive notice that you’ve disputed a charge related to a purchase made from your account, we may, at our discretion, offer proof to challenge the dispute. Pending resolution of the dispute, we may remove the purchased Products from your account temporarily, or, if a refund is ultimately issued, permanently. In our discretion, we may take further action against your account.

B.   Payouts

Sellers earn a percentage of the list price of each Product they sell through our Platform based on the payout rate that applies to their subscription type (“Earnings”). Earnings are reduced by the full amount of any transaction fees that apply, and increased by the full amount of any shipping fees charged. Earnings are paid in monthly payouts (“Payouts”).  Sellers must maintain a minimum balance of $25.00 to receive a Payout. To issue Payouts, we work with third party companies which process and transfer funds between us and our sellers, currently PayPal (“Payment Services”). To receive Payouts, sellers must have an account capable of receiving payments with a supported Payment Service (“Payout Account”). If you have questions about the status of your Payout Account, please reach out directly to the Payment Service you use. We make no guarantees about the services offered by any third party companies including the current or any future Payment Services we may support, and we are not responsible for any payment delays or other complications caused by Payment Services. We may, at our discretion, modify the list of supported Payment Services at any time, discontinue support for an existing Payout Service, or make additional Payout options available.  We may, at our sole discretion, withhold or delay a Payout due to any seller who we believe to be in violation of any of these Terms. After the matter is resolved, we will either refund the withheld sales or complete the Payout.  Payment Services may assess transaction fees when we transfer your Payouts to you. We will deduct from your Payout an amount equal to or less than the transaction fee assessed to us by the Payment Services. These transaction fees are subject to change at the discretion of the Payment Services. We are not responsible for any additional fees or taxes you may incur from other third parties related to receiving or accessing your Payouts.

C.   Taxes

Many states have enacted Marketplace Facilitation laws that impose an obligation on the Marketplace Facilitator to collect and remit sales tax on behalf of Marketplace Sellers.

As a Marketplace Facilitator, FitSwop will calculate, collect, and remit sales tax, where required, on taxable sales by sellers for transactions destined to states where Marketplace Facilitation legislation is enacted.

The list of states, with effective dates, where FitSwop will calculate, collect, and remit tax as a Marketplace Facilitator can be found here.  This list will be updated from time to time.

By operating as a seller on the Platform, you hereby agree to the following:

(i) Except where FitSwop will calculate, collect, and remit tax as a Marketplace Facilitator, you acknowledge and agree that you are responsible for the reporting and payment of any applicable taxes arising from the use of the Platform. You hereby agree to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with the use of the Platform.

You agree to indemnify, defend, and hold harmless FitSwop, its employees, officers, directors, agents, and affiliates from and against all costs, expenses, damages, judgments, and liabilities (including reasonable attorneys’ fees) resulting from allegations, threats, claims, suits, or other proceedings (i) brought by third parties related to your use the Platform; and (ii) brought by any taxing authority, related to your failure to properly remit any taxes which are owed by you in in connection with your use of the Platform.

17.       Wireless Features

A.   Wireless Features

The Platform may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Platform’s features and upload content to the Platform, receive messages from the Platform, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.

B.   Terms of Wireless Features

You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Platform for Wireless Features, then you agree to notify FitSwop of any changes to your wireless contact information (including phone number) and update your accounts on the Platform to reflect the changes.

18.       Dispute Resolution

A. If any controversy, allegation, or claim arises out of or relates to the Platform, the Content, your User-Generated Content, these Terms, or any Additional Terms (collectively, “Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section.

B. Disputes; Arbitration; Governing Law; Jury and Class Action Waivers; and Limitation of Time to Bring Claims. These Terms shall in all respects be governed by the laws of the State of Ohio without reference to its principles of conflicts of laws that could result in application of other law, regardless of your location. Both parties acknowledge and agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to the license of the Platform hereunder. You agree that any suit, action or proceeding arising out of or relating to these Terms or any of the transactions contemplated herein or related to the Platform or services herein (including, without limitation, statutory, equitable or tort claims) shall be resolved solely by binding arbitration before a sole arbitrator under the commercial dispute rules and regulations of the American Arbitration Association (“AAA”); provided, however, that notwithstanding the parties’ decision to resolve any and all disputes arising under these Terms through arbitration, FitSwop may bring an action in any court of applicable jurisdiction to protect its intellectual property rights or to seek to obtain injunctive relief or other equitable relief from a court to enforce the provisions these Terms or to enforce the decision of the arbitrator. Any arbitration shall be held in Cincinnati, Ohio and to the extent an action at law is permitted hereunder, you consent to the jurisdiction and venue of the courts located in Cincinnati, Ohio. The parties agree that questions of arbitrability shall be decided by the arbitrator. The arbitrator shall apply the substantive laws of the State of Ohio, shall issue a written decision, and shall have the power to award any legal remedies consistent with these Terms except for punitive, exemplary or special damages. The parties will split the arbitrator’s fee. Disputes will be resolved only on an individual basis and will not be consolidated with any other claims, suits or other proceedings that involve any claim or controversy of any other party. If, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to this Section holds that this restriction is unconscionable or unenforceable, then our agreement in this Section to arbitrate will not apply and the dispute must be brought exclusively in court pursuant to this Section; provided, however, that each party expressly waives the right to a jury trial with respect to any such dispute. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation:(i) neither party will bring a legal action, regardless of form, for any claim arising out of or related to these Terms (or any applicable Additional Terms) more than two (2) years after the cause of action arose; and (ii) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse. The prevailing party in any action to enforce or interpret these Terms shall be entitled to an award of its costs and expenses (including, without limitation, reasonable, outside attorneys fees).

C. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by either party pursuant to the terms of these Terms shall be in writing and shall be deemed given: (i) when delivered personally; (ii) on the next business day after timely delivery to an overnight courier; and (iii) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid); Any notice shall be addressed as follows:

(a) Attn: Legal Department, FitSwop LLC
123 Buttermilk PIke
P.O Box 176331
Lakeside Park, KY 41017

; and

(b) if to you, at the address provided by you to FitSwop.

D. Your correspondence or business dealings with retailers, advertisers, and other users found on or through the Platform, including payment and delivery of Products, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such retailer, advertiser, or user. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such retailers, advertisers, or users in connection with the Services.  If a dispute arises with retailers, advertisers, or other users of the Platform, we are under no obligation to become involved, and you hereby hold us harmless regarding such dispute.

19.       DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

To the fullest extent permissible by law, FitSwop and its affiliates and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “FitSwop Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, including any warranty of performance, merchantability or fitness or suitability for a particular purpose, as to:

(i) the Platform (including the Content and the User-Generated Content);

(ii) the functions, features, or any other elements on, or made accessible through, the Platform;

(iii) any Products, Services, or instructions offered or referenced at or linked through the Platform;

(iv) security associated with the transmission of your User-Generated Content transmitted to FitSwop or via the Platform;

(v) whether the Platform or the servers that make the Platform available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(vi) whether the Content on the Platform is accurate, complete, correct, adequate, useful, timely, or reliable;

(vii) whether any defects to or errors on the Platform will be repaired or corrected;

(viii) whether your access to the Platform will be uninterrupted;

(ix) whether the Platform will be available at any particular time or location;

(x) whether your use of the Platform is lawful in any particular jurisdiction; and

(xi) the services accessible through the Platform.

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A FITSWOP PARTY, FITSWOP PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

20.       LIMITATIONS OF OUR LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT FITSWOP PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING THOSE RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE PLATFORM OR CONTENT; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR CONTENT USED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH OR FROM THE PLATFORM; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; (E) FROM ANY INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PLATFORM, OR (F) ANY OTHER MATTER RELATING TO THE PLATFORM, THE CONTENT, OR THE WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of damages of the sort that are described above, so the above limitation or exclusion may not apply to you.

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FITSWOP PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TO FITSWOP IN CONNECTION WITH THE SERVICES THAT UNDERLIE THE CLAIM(S).

21.       Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). Therefore, you should review the posted terms of service and any applicable Additional Terms each time you use the Platform (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. You can reject any new, revised or Additional Terms by discontinuing use of the Platform and related services.

22. Shipping Policy

Our shipping policy outlines your responsibility as a seller to ensure our buyers receive their items in a timely manner.  Seller shall indemnify and hold harmless FitSwop from all claims, losses, and liabilities resulting from the shipping of items sold through the Platform.

A.     Shipping

Sellers are solely responsible for shipping items that are sold within their shop.  Seller must ship all such items in a timely manner.

B.    Insurance

Sellers are solely responsible for providing shipping insurance for all items that are sold from their shop.  Seller shall obtain insurance to reasonably protect all shipments.

C.     Communication

Sellers are solely responsible for communicating with buyers regarding products that are sold and shipped.  Seller shall provide reasonable shipping status updates to the buyers.

23.       General Provisions

A.   Our Consent or Approval

As to any provision in these Terms or any Additional Terms that grants FitSwop a right of consent or approval, or permits FitSwop to exercise a right in its “sole discretion,” FitSwop may exercise that right in its sole and absolute discretion. No FitSwop consent or approval may be deemed to have been granted by FitSwop without being in writing and signed by an officer of FitSwop.

B.   Indemnity

You agree to, and you hereby, defend, indemnify, and hold FitSwop Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any FitSwop Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Platform and your activities in connection with the Platform, including disputes with other users; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform or your activities in connection with the Platform; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you, including any Product specification misrepresentation described herein; and (vii) FitSwop Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by FitSwop Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, FitSwop Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. FitSwop Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a FitSwop Party.

C.   Operation of Platform; Availability of Products and Platforms; International Issues

FitSwop controls and operates the Platform from its U.S.-based offices in the U.S., and FitSwop makes no representation that the Platform is appropriate or available for use beyond the U.S. If you use the Platform from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Platform may describe products and services that are available only in the U.S. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Platform and/or the provision of any content, program, product, service, or other feature described or available on the Platform to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.

D.   Export Controls

Software related to or made available by the Platform may be subject to export controls of the U.S.A. No software from the Platform may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.

E.   Severability; Interpretation

If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation.” The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.

F.    Communications

When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

G.   Assignment

FitSwop may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of FitSwop.

H.   No Waiver

Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or FitSwop in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

I.      U.S. Government Restricted Rights

If you are a government end user, then this provision applies to you. The Platform provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer site” and/or “commercial computer site documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.

J.     Connectivity

You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Platform and you will be responsible for all charges related to them.