Welcome to Fitango, an interactive expert content marketplace and collaborative web service the "Platform"). Please read carefully the following terms and conditions (the "Agreement") because they form a binding agreement between you, a person or entity in a relevant profession with relevant skills, experience or expertise (the "Expert") and Fitango Inc. ("Fitango"). As an Expert, you will create, market, and provide plans ("Actionplans™"); through our website www.Fitango.com (the "Site"); and provide recommendations, services and products ("Expert's Services") through the Site and Platform. As an Expert, you agree to be bound by the terms of this Agreement. As a user of the Site, you also agree to the Platform's Terms of Use (the "Terms of Use"). If you do not agree with the terms of this Agreement, you may not join the Platform as an Expert.
1.
General Rules
The Platform is an
online platform where you can provide Expert's Services to users of
the Platform ("Users"). You may charge fees in exchange
for your Expert's Services, subject to certain rules, as Fitango will
publish from time to time and subject to your compliance with the terms
and conditions in this Agreement. All Expert's Services provided to
Users will be billed through Fitango, utilizing commercially available
payment methods. Any communications that you have and transactions that
you enter into with Users are made strictly between you and the Users.
Fitango is not a party, should not be deemed a party and does not assume
any responsibility with respect to such transactions and communications.
Fitango is under no obligation to verify the identity of Users, to authenticate
Users' communications, or to resolve disputes between you and any User,
or other Experts.
2. Preliminary terms for providing Expert's Services
You may provide Expert's Services through the Platform if by providing the Expert's Services you will not violate any applicable law; you will not enter into any conflict of interests; you will not breach your contractual duties, such as, if applicable, your employment agreement and your employer's rules, codes and policies and you will obtain all necessary waivers and consents from any relevant third party. You further represent that you are duly authorized to enter into this Agreement. If you are a representative of an institution, organization or other legal entity ("Institution"), you represent that you are duly authorized to enter into this Agreement on the Institution's behalf, that the Institution is duly authorized to enter into this Agreement, that the terms of this Agreement apply to all Experts of the Institution that provide Expert's Services through the Platform and that the Institution assumes full responsibility to the performance of duties under this Agreement by the Institution's Experts.
3. Transactions and Revenue Sharing
You and Fitango shall share participation in any and all Net Revenue generated in connection with the sale of Actionplans through the Platform in accordance with the terms listed in Fitango's Fee Schedule (the "Fee Schedule"). "Net Revenue" shall be defined as revenue actually received by Fitango in direct connection with the sale, licensing or distribution of Expert's Services, minus all applicable taxes and expenses related to the sale, licensing or distribution. Net Revenue expressly excludes general revenue, such as revenue Fitango receives from sponsorship or advertising on the Site. Fitango shall pay you the applicable percentage of Net Revenue it receives within thirty (30) days from the end of each calendar month in which receipt of revenue occurs. The applicable percentage shall be paid to you via check of Paypal. If the aggregate Net Revenue is less than a Minimal Sum (as defined in the Fee Schedule) for any given month, the payment will be held over and combined with the next monthly payment, or until such payment reaches the Minimum Sum or more, paid on a monthly basis. Notwithstanding the foregoing, all Net Revenue will be paid within forty five (45) days after the Date of Termination (as defined below), even if such payment is less than the Minimum Sum. From time to time, Fitango may change the value of the Minimum Sum. All payments to you will be accompanied by an accounting statement containing sufficient information to allow you to confirm the accuracy of statement and payments rendered.
For all Net Revenue actually received by Fitango as a result of any agreement that Fitango maintains with a business affiliate ("Affiliate") for the licensing, sale or distribution of your content, Fitango shall share Net Revenue according to the terms listed in Fitango's Fee Schedule.
Fitango maintains the right to alter the revenue sharing percentages listed in the Fee Schedule. All transactions that you enter into with Users will be billed through Fitango. Fitango will make reasonable efforts to have such transaction processed accurately and expeditiously. However, Fitango will not be liable for mistakes, errors, malfunctions and miscalculations made in the course of transactions between you and a User. You will abide by the pricing terms agreed upon with Users for the Expert's Services that you render. From time to time, Fitango may initiate, in its sole discretion, special pricing programs and incentives with respect to certain or all Expert's Services available through the Platform. You agree to abide by these programs and incentives, if they apply to Expert's Services that you provide. At all times, the current Minimum Sum is published in the Fee Schedule. Other than you and your Institution's portions of the fees, you and your Institution are not entitled to any payment or other benefits in consideration for rendering your Expert's Services through the Platform. You agree to pay all taxes and levies with respect to the fees that you receive. Notwithstanding any remedies available to Fitango under the applicable law, Fitango may set-off, or deduct from your account any sums as compensation for damage resulting from fraudulent or other unlawful activities, and for credits, refunds and payments that will likely remain uncollectable - all in relation to the Expert's Services that you provide through the Platform.
4. Rules of Conduct
Fitango sees great importance in your proper conduct as an Expert on the Platform. You agree that during your Expert application process, and in the course of your use of the Platform, the Expert's Services that you will provide Users and any communications you may have with Fitango or with Users, you will abide by the following rules:
5. Competency Inquiries and Tests
As a precondition of providing Expert's Services through the Platform and throughout your engagement in providing the Expert's Services, you will provide Fitango, at Fitango's request, any material pertaining to your professional credentials. You agree that Fitango may (but is under no obligation to) perform any inquiries and divulge your details to third parties, with respect to your professional details and your overall competency to provide Expert's Services through the Platform, and may also test and evaluate your competency, from time to time, or on regular basis, once a year or in a different frequency, at Fitango's sole discretion. No inquiry or test will be regarded as consent on Fitango's part to allow you to provide Expert's Services through the Platform. It is entirely a decision that Fitango's will make in its sole discretion.
6. Registration and Personal Account
BY REGISTERING AND
USING THE PLATFORM AS AN EXPERT YOU REPRESENT AND WARRANT THAT YOU ARE
13 YEARS OF AGE OR OLDER.
Fitango may charge fees for your registration as an expert, whether
it is standard or premium registration. Fitango may also opt to charge
registration fees for previously free registrations or change fee rates
for premium registrations in the future. Fitango will require such fees
only following the posting of prior notice on the Platform, but Fitango
is under no obligation to notify you in person of any change in Fitango's
registration policy. If you do not consent to the terms in the notice,
or fail to settle your registration fees to Fitango's satisfaction,
your account on the Platform may be terminated.
When you register with the Platform, Fitango will ask you to provide certain contact and personal details. Bear in mind that false, incorrect, or outdated information may prevent you from registering and impair Fitango's ability to provide you with Expert's Services and to contact you, as well as your ability to provide Expert's Services as an Expert. Fitango will explicitly indicate the fields for mandatory completion. If you do not enter the requisite data in these fields, you will not be able to register as an Expert.
To login, you must use your email address or user name and password. Fitango may also establish and require from time to time additional or different means of identification and authentication for logging in and accessing your account, or for accessing certain Expert's Services on the Platform. You agree to maintain your login details in absolute confidentiality and refrain from disclosing them to others. Make sure that you change your password frequently and at least once every six months. You are fully accountable for any outcome that may result from your failure to provide true, accurate and complete details in the course of the registration process, and for any use or misuse of your account on the Platform, and for any Expert's Services rendered under your name and password, as a result of compromising your details or conveying them to someone else.
You may terminate your account at any time, by using Fitango's designated termination form at Fitango's Account Settings. Fitango may require you to verify your termination notice by sending Fitango an additional termination request message, either by e-mail or through any other means, as a prerequisite for termination of your account. Your account on the Platform will terminate at the later of 10 days following your notification or the conclusion of your obligations toward users of your Expert's Services ("Date of Termination"), and from the date of termination you will no longer be able to access your account.
Notice of termination of your account, for any reason, whether out of your initiative, or Fitango's, does not release you from concluding prior to the Date of Termination, any Expert's Services that you have started providing a User, prior to the termination, unless Fitango requires you to cease providing the Expert's Services. After the Date of Termination, all Actionplans™ and/or other content that Users have purchased and/or downloaded through the Site as a result of your Expert's Services shall remain on the Site and shall be accessible by said Users in perpetuity.
7. Reports
Fitango will make performance and summary of activities reports available to you, including details and information, such as the number of sales, the sales amounts and rates, commissions paid and comparison with previous periods. The reports may also contain details on your listed Expert's Services, such as the number of page views of each listed service's web page, the number of actions taken by potential users, the number of Expert's Services sold and the price that each was sold. Fitango will make the reports available by sending them to you periodically, or by providing you with access to the relevant details on Fitango's system, or by any other means, in Fitango's sole discretion. From time to time, Fitango may add, omit or change the character and extent of information provided in the reports and may offer certain other reports. At any time, Fitango may opt to charge fees for any or all of the reports that it makes available.
8. DISCLAIMER OF WARRANTY AND LIMITATIONOF LIABILITY
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FITANGO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FITANGO MAKES NO WARRANTY THAT (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (ii) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, PLATFORMS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FITANGO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FITANGO MAKES NO WARRANTY THAT (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (ii) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, PLATFORMS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
FITANGO MAKES NO REPRESENTATION ABOUT THE SOLVENCY OF USERS AND THEIR
WILLINGNESS TO PAY FEES IN EXCHANGE FOR THE EXPERT'S SERVICES THAT YOU
RENDER.
YOU WILL BE SOLELY RESPONSIBLE FOR THE EXPERT'S SERVICES THAT YOU PROVIDE
AND TO THE VERIFICATION OF INFORMATION DELIVERED TO YOU BY USERS.
YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE PLATFORM AND THE EXPERT'S
SERVICES THAT YOU RENDER ARE MADE ENTIRELY, OR AT THE MAXIMUM PERMITTED
BY THE APPLICABLE LAW, AT YOUR OWN RISK.
FITANGO, INCLUDING FITANGO'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES,
SUB-CONTRACTORS AND AGENTS SHALL NOT BE LIABLE TO THE MAXIMUM EXTENT
PERMITTED BY THE APPLICABLE LAW, FOR ANY DIRECT, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE AND LOSS (INCLUDING LOSS
OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN
TORT, CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM,
OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE PLATFORM,
OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE PLATFORM,
OR FROM ANY FAULT, OR ERROR MADE BY FITANGO'S STAFF OR ANYONE ACTING
ON FITANGO'S BEHALF, OR FROM ANY ERRORS, MALFUNCTIONS OR MISCALCULATIONS
MADE BY FITANGO'S BILLING SYSTEM, OR FROM YOUR RELIANCE ON CONTENT AVAILABLE
ON THE PLATFORM, OR FROM ANY COMMUNICATION WITH THE PLATFORM, OR WITH
OTHER USERS AND PROFESSIONALS ON OR THROUGH THE PLATFORM, OR FROM ANY
DENIAL OR CANCELATION OF YOUR PROFESSIONAL OR USER ACCOUNT, OR FROM
RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT
ON THE PLATFORM. IN ANY EVENT, YOUR SOLE REMEDY SHALL BE LIMITED TO
THE CORRECTIONS OF SUCH ERRORS, OR MALFUNCTIONS.
9. Indemnification
You agree to indemnify, defend and hold harmless, Fitango and Fitango's managers, directors, shareholders, employees, sub-contractors, agents and anyone acting on Fitango's behalf, as well as Users, at your own expense and immediately after receiving a written notice from Fitango, from and against any damages, loss, costs, expenses and payments, including reasonable attorney's fees and legal expenses, resulting from any complaint, claim, or demand, arising from, or in connection with the Expert's Services that you render through the Platform, any communications that you convey through the Platform, or your breach of this Agreement or the Terms of Use, or any other terms, rules or regulations applicable to the Platform, or your violation, or infringement of a third-party's rights. The indemnified party shall give prompt written notice to the indemnifying party of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity. The indemnifying party's obligations are conditioned upon the indemnified party (a) granting complete control of the defense and settlement to the indemnifying party; and (b) reasonably cooperating with the indemnifying party at the indemnifying party's expense. The indemnified party shall not settle any claim without the prior written consent of the indemnifying party. The indemnifying party shall not settle any claim that adversely impacts the indemnified party without the indemnified party's prior written consent
10. Termination
Notwithstanding any remedies that may be available to Fitango under any applicable law, Fitango may temporarily or permanently deny, limit, suspend, or terminate your Expert's account, prohibit you from accessing the Platform, remove content that you uploaded to the Platform and take technical and legal measures to keep you off the Platform, and prevent you from communicating with Users and other Experts, for any reason, or no reason at all, and, without limiting the aforesaid, if Fitango believes that:
11. Confidentiality
You will keep Users' information confidential. You will use and disclose such information or the identity of any User without first obtaining the User's express written consent, only in connection and for the purpose of rendering Expert's Services to that User, or as required by law. If you are a representative of an Institution, you will obtain written commitments to the provisions of this paragraph from each person employed by or associated with the Institution, who provides Expert's Services through the Platform, or has any access to information which the Institution is required by this paragraph to keep confidential.
However, any information displayed to the public on the Platform is
not considered confidential and will not be treated as such. Fitango
maintains all rights to use any information made available to the public
on the Platform.
12. Intellectual Property
Please refer to Fitango's Copyright Policy before uploading any content onto the Site or Platform.
Fitango does not claim ownership over content, such as text and images that you upload to the Platform. However, when you do so, you represent and warrant that you are the rightful owner of all rights to that content or that you are licensed by the rightful owners to post and use such content on the Platform and that you do not violate any rights of third parties. By uploading content, including data, images, sounds, videos, text, ideas, concepts, know-how, or techniques to the Platform, and including any and all communications that you make with other users on or through the Platform, you grant Fitango a royalty-free, worldwide, non-exclusive, perpetual license to copy, distribute, display publicly, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, sub-license, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with or incorporate into other content, modify and create derivative works on the Platform, and in other communication and information networks, platforms, applications and services. You further waive all rights of attribution with respect to the use of your content. Further, you agree that Fitango may use its technical infrastructure to provide the content via the Platform over public networks and various media, including such changes to your content as are necessary to adapt and/or optimize the content for purposes of connecting networks, mobile devices or media.
By uploading Actionplans to the Platform, you agree that any User who rightfully accesses or purchases the Actionplans may share portions of the content contained therein with any other User for the purpose of fulfilling the role of "Motivator" on the Platform.
13. No relationship
You are not an employee, an agent, a partner or affiliate of any kind of Fitango. Nothing contained in this Agreement will be construed as forming employee-employer, partnership, agent-principal, joint venture or any other kind of relationship or affiliation between you and Fitango. Nothing in Fitango's conduct on the Platform will be regarded a referral, endorsement, recommendation or sponsorship of your Expert's Services.
14. Amendments to this Agreement
Fitango may from time to time change the terms of this Agreement. Substantial changes will take effect 30 days after Fitango have posted an initial notification on the Platform's homepage or any other relevant web pages on the Platform, with respect to such changes. Other changes will take effect 7 days after their initial posting on the Platform, unless Fitango amends the terms of this Agreement to comply with legal requirements. In such cases the amendments will become effective immediately upon their initial posting, or as legally required.
However, changes related to payments in consideration for Expert's Services rendered will not apply to on-going and yet to be concluded Expert's Services.
You agree to be bound by any of the changes made to the terms of this Agreement, including changes to any and all documents, forms and policies incorporated thereto. Continuing to use the Platform will indicate your acceptance of the amended terms. If you do not agree with any of the amended terms, you must avoid any further use of the Platform.
15. Governing Law, Jurisdiction
Except as provided for in the Copyright Policy, this Agreement and your use of the Platform shall be governed by and construed in accordance with the laws of the State of New York, U.S.A. without giving effect to any choice of law or conflict of law rules or provisions, whether Federal, or of the State of New York or of any other jurisdiction, which would result in the application of the laws of a jurisdiction other than the State of New York. You agree to resolve any dispute or claim that you may have against Fitango and to submit to personal jurisdiction in the exclusive jurisdiction of state and federal courts in the city of New York, New York.
16. Notices
Fitango may contact you and send you notices via e-mail, regular mail, Short Message Services ('SMS'), fax messages, and notices on the Platform. You may contact Fitango's customer relations, by using the Contact Us page on the Platform, or by using Fitango's contact details hereunder. Fitango reserves the right to publish in public - including on the Platform - any communications with you, as long as your personal details will not be revealed without your prior consent. All communications between Fitango will be deemed as received after one business day.
Fitango's contact details:
Fitango Inc.
119 W 57th Street, Penthouse North
New York, NY, 10019
T: 212-265-0202
info@fitango.com
17. Limitations of Use by Users Located in Embargoed Countries
If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of Specially Designated you will not engage in commercial activities on the Platform (such as advertising or payments) or sell products or Platforms.
18. Changes in Ownership
Fitango may incorporate the Platform as a separate company or transfer ownerships rights and title in the Platform, to a third party, provided that your rights according to the Terms are not compromised by the transfer of ownership. In that case, all of your details and information pertaining to you will be passed on to the corporation receiving the rights in the Platform and you hereby give your prior consent thereto.
19. Representations and Warranties
You represent and warrant that you own or have acquired and will continue to hold during the term hereof, all necessary rights, licenses, and/or permissions to post your content onto the Site, and to grant the licenses hereunder.
You represent and warrant that Fitango's use of the content as contemplated herein shall not infringe the rights of any third parties.
You represent and warrant that you have the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder.
20. General
This Agreement, along with the Terms of Use, shall constitute the entire agreement between you and Fitango with respect to the use of the Platform and supersedes any and all other agreements.
No waiver, concession, extension, representation, alteration, addition or derogation from the Terms by Fitango, or pursuant to the Terms, will be effective unless consented to explicitly and executed in writing by Fitango's authorized representative.
This Agreement will take precedence over all documents, forms and policies incorporated thereto, which may conflict with this Agreement, unless specifically indicated in such documents that a certain provision is determined notwithstanding any of the provisions of this Agreement.
Failure on Fitango's part to demand performance of any provision in this Agreement shall not constitute a waiver of any of Fitango's rights under the terms. The United Nations Convention on Contracts for the international Sale of Goods shall not govern this Agreement.
Your rights and obligations under this Agreement are not assignable. Any attempted or actual assignment thereof by you will be null and void without Fitango's prior explicit consent in writing.
The section headings in this Agreement are included for convenience only and shall take no part in the interpretation, or construing of this Agreement. In this Agreement, the term "including", whether capitalized or not, means without limitation.
If any provision of this Agreement is held to be illegal, invalid, or unenforceable by a competent court, then the provision shall be performed and enforced to the maximum extent permitted by law, and the remaining provisions of this Agreement shall continue to remain in full force and effect.
The provisions of the intellectual property, disclaimer of warranty, limitation of liability and indemnification sections, shall survive the termination, or expiration of this Agreement.
21. Violation/Disputes
You may report any violations of this Agreement to info@fitango.com
This Agreement was last updated on 03/15/2011.
