Section 1. - Definitions.
- "Laws" means all ordinances, statutes, rules, regulations, orders, injunctions, writs or decrees of any government or political subdivision or agency thereof, or any court or similar entity established by any thereof.
- "Person" means any individual, corporation, limited liability company, partnership, limited liability partnership, association, joint-stock company, trust, unincorporated organization, joint venture, court or government or political subdivision or agency thereof, any other business entity, and any legal person.
- "Services" means, collectively, the features and information available on the Website, and any other services provided by FMS to the User.
- "User Information" means any information transmitted to or collected by FMS concerning the User, including without limitation personal information, User Submissions (as defined below), and Registration Information (as defined below).
- "User Submissions" means any content (including artwork, audio recordings, code, copy, concepts, data, ideas, images, information, messages, music, photography, programs, test results, test scores, text, video recordings, written materials, and/or other materials) that the User uploads, posts, e-mails, submits, or otherwise transfers to FMS, to the Website, or to any other User.
Section 2. - Health Disclaimer.
- No Medical Advice. The Website and the Services (including without limitation the text, images, audio, video, and descriptions contained therein) are provided for educational and informational purposes only, and should not be used as a substitute for consultation, evaluation, or treatment by a qualified and licensed physician or other qualified and licensed health care professional. Neither FMS, the Website, nor the Services direct that You undertake any specific exercise, activity, technique, physical training, or fitness regimen. Nothing on the Website or the Services should be considered medical advice or a medical diagnosis, and nothing on the Website or the Services or in any FMS materials is intended or should be used or relied upon to heal, cure or relieve those suffering from any injury, deformity or disease.
- Risk of Injury; Prior Consultation with Licensed Health Care Professional Required. The risk of injury from participation in a fitness regimen and/or from the performance of any exercise is significant, including the potential for catastrophic injury or death. Before engaging in any of the activities described on the Website, the Services, or in any other FMS materials, including without limitation any exercise, activity, technique, physical training, or fitness regimen, You should and must consult with a qualified and licensed physician or other qualified and licensed health care professional.
All Users are specifically warned to seek medical advice from a qualified and licensed health care professional before initiating any form of exercise, activity, technique, physical training, or fitness regimen. Such advance consultation with Your doctor is particularly important if You are under eighteen (18) years old, pregnant, breastfeeding, or have health problems or conditions. You agree not to disregard professional medical advice or delay in seeking it because of something You have read on this Website. If You have or suspect You have a medical problem or condition, please contact a qualified and licensed health care professional immediately. If You believe You are experiencing a medical emergency and You are located in the United States, please call 911 for emergency medical help on Your nearest telephone.
Section 3. - Age Restrictions.
Unless You have express permission from Your parent(s) and/or guardian (as defined under the Laws of Your jurisdiction or residence), You must be eighteen (18) years old or older to access, purchase from, or otherwise use the Website or any Services. No one under thirteen (13) years old is permitted to use or access the Website or the Services.
Section 4. - Limited License.
- All Other Uses Prohibited. Any other use of the Website is expressly prohibited, and such unauthorized use automatically and immediately terminates the limited license granted by FMS. In addition, FMS reserves the right, in its absolute discretion, to revoke this license at any time and for any reason or for no reason, with or without notice to the User.
Section 5. - Termination.
FMS may, in its absolute discretion, terminate or suspend Your license to access all or any part of the Website at any time, without prior notice and for any reason.
Section 6. - Availability.
FMS makes no guarantees regarding the availability of the Website or the Services (including the availability of any given Service). FMS reserves the right, in its absolute discretion, to discontinue or modify the contents of the Website or the Services, in whole or in part, and to modify the terms of the Services, including without limitation the price for the Services. You agree that FMS will not be liable to You for any such discontinuance or modification of the Website or the Services.
Section 7. - Unaffiliated Products and Sites.
The Website may contain links to other websites or resources or and/or advertisements or other promotional materials for third-parties ("Third Party Websites"). FMS has no control over the content of Third Party Websites or the quality of the goods or services offered via such Third Party Websites. You acknowledge and agree that FMS is not responsible for and in no way guarantees or endorses: (a) the availability of Third Party Websites; (b) the accuracy, value, or completeness of any content available at or through the Third Party Websites; or (c) the goods or services offered via Third Party Websites.
Accordingly, You acknowledge and agree that FMS shall not be responsible or liable to You in any manner, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on the content of any Third Party Websites and/or the quality of any goods or services offered by or through any Third Party Websites.
Section 8. - Intellectual Property.
Unless otherwise noted, products, patents, product names, designs, logos, titles, text, images, audio, video, and all other content within the Website and the Services are the trademarks, service marks, trade names, copyrights, patents or other property of FMS ("FMS Intellectual Property"). All other unregistered and registered trademarks are the property of their respective owners. Nothing contained on the Website or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any FMS Intellectual Property displayed on the Website without the written permission of FMS.
Section 10. - User Accounts.
Section 11. - User Submissions.
Prohibited Submissions. You agree that You are responsible for all of Your User Submissions. You agree that You will not create any User Submissions that:
- contain viruses, worms, Trojan Horses, or any other computer code, files, scripts, or programs designed (1) to interrupt, destroy, or limit the functionality of any website, computer software, network, or telecommunications equipment or (2) to collect or mine information about this Website, the Services, FMS, or other Persons;
- infringe upon, breach, or violate another Person's intellectual property rights, contract rights or other rights;
- contain personally identifiable information of any other individual, including, but not limited to, name, phone number, e-mail address, username, password, nickname, website URL, date of birth, or Social Security Number;
- are inappropriate, including, but not limited to, User Submissions that are obscene, pornographic, sexually-explicit, defamatory, threatening, harassing, abusive, hateful, embarrassing to another Person, solicitations of business, chain letters, or pyramid schemes;
- would give rise to any civil or criminal liability under applicable Laws; and/or
- No Third Party Material. You agree, represent, and warrant that all User Submissions that You create will not contain third party copyrighted material or material that is subject to other third party proprietary rights, unless You have permission from the rightful owner of the material (or You are otherwise legally entitled) to create or transmit the material and to grant FMS all of the license rights granted herein.
- Monitoring of User Submissions. FMS does not have an obligation to assess or guarantee the accuracy or appropriateness of User Submissions, even if FMS elects, in its absolute discretion, to do so or to attempt to do so from time to time. FMS is not responsible for any User Submissions or any actions or omissions in response to User Submissions. FMS may, in its absolute discretion: (i) elect not to post or display on the Website any User Submission, and (ii) delete or otherwise remove any User Submissions from the Website.
Section 12. - Digital Millennium Copyright Act.
FMS is committed to complying with U.S. copyright law and to responding to claims of copyright infringement. FMS will expeditiously process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512 (the "DMCA").
Takedown Notice. Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to a Service Provider's Designated Agent. Notification must be submitted to the following Designated Agent for the Website in the manner described below:
- By sending an e-mail to email@example.com; or
- By sending a letter via U.S. mail to:
Functional Movement Systems, Inc.
ATTN: Legal Department
P.O. Box 911
Chatham, VA 24531
For Your complaint to be valid under the DMCA, You must provide the following information when providing notice of the claimed copyright infringement:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit FMS to locate the material;
- Information reasonably sufficient to permit FMS to contact the complaining party, such as an address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For more details on the information required for valid notification, see 17 U.S.C. ' 512(c).
Upon receipt of a fully completed and signed notification, FMS, as required bythe DMCA, will disable access to the allegedly infringing materials and will promptly notify the individual who posted the materials that access has been disabled. If Your notification does not comply with the above requirements, FMS will not be able to respond to Your request.
Counter Notification. Pursuant to 17 U.S.C. ' 512(g), the individual who posted the materials may provide FMS with counter notification that the materials were removed or disabled as the result of a mistake or misidentification of the materials. This counter notification must include:
- a physical or electronic signature of the subscriber;
- identification 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;
- a statement under penalty of perjury that the subscriber has 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; and
- the subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under 17 U.S.C. ' 512(c)(1)(C) or an agent of such person.
If FMS receives such a counter notification, and FMS determines that it intends to restore access to the materials, a copy will be sent to You notifying You that access to the materials will be restored within ten (10) business days. Access will be restored between the tenth (10th) and fourteenth (14th) business day after FMS receives a counter notification unless You inform us that You have filed an action seeking a court order to restrain the individual who made the posting from engaging in infringing activity on FMS's network and servers. If FMS determines that it will not restore access to the materials, You will not receive any further notifications.
You should be aware that, under the DCMA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, including without limitation court costs and attorneys' fees.
Section 13. - Prohibited Conduct.
You agree that You will not:
- access data not intended for You or login to a server or account which You are not authorized to access;
- decipher, decompile, disassemble, or reverse engineer any of the software, codes, or scripts comprising or in any way making up a part of the Website or the Services;
- violate or attempt to violate the security of the Website or the Services, including without limitation, accessing data without authorization, circumventing authentication mechanisms, or interfering with the Website or the Services in any way, including without limitation:
- (1) probing, scanning, or testing the vulnerability of a system or network, (2) bypassing or breaching security or authentication measures without proper authorization, (3) interfering with service to any Person, user, host or network, including without limitation via means of submitting a virus, Trojan Horse, "worm" or "cancelbot" to the Website, overloading, "flooding", "spamming", "mailbombing" or "crashing", (4) sending unsolicited e-mail, including promotions and/or advertising of products or services, (5) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or (6) impersonating any Person;
- use any engine, software, tool, agent or other device or mechanism (including without limitation, browsers, spiders, avatars or BOTs/intelligent agents) to navigate or search the Website other than as provided through the Website and/or a standard third party browser (e.g., Firefox, Safari, Chrome, Internet Explorer, or Opera);
- "frame" or "mirror" the Website or display the Website`s content through any other URL or in conjunction with another Person's name or trademark;
- attempt to engage in any of the foregoing prohibited conduct.
Section 14. - Disclaimer of Warranties; Limitation of Liability.
TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER FMS NOR ITS AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, ASSIGNS, SUPPLIERS, AND SERVICE PROVIDERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PARTY ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE WEBSITE OR SERVICES, (B) THE OPERATION OR MALFUNCTION OF THE SERVICES, OR (C) ARISING IN ANY WAY FROM OR RELATING TO YOUR PURCHASE OF FMS PRODUCTS OR SERVICES (OR ANY OTHER PRODUCTS OR SERVICES) VIA THE WEBSITE, AND, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT ALLOWED BY LAW, FMS SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO OR ALTERATION THEFT OR DESTRUCTION OF, ANY INFORMATION CONTAINED ON THE WEBSITE OR SERVICES THROUGH ACCIDENT OR THROUGH FRAUDULENT OR WRONGFUL MEANS OR DEVICES. IN ANY EVENT, THE LIABILITY OF FMS TO YOU OR ANY OTHER USER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL IN NO EVENT EXCEED THE SUM OF THE GREATER OF ONE THOUSAND AND 00/100 DOLLARS ($1,000.00) OR, IN THE EVENT THAT YOUR DISPUTE OR CLAIM ARISES FROM YOUR PURCHASE OF PRODUCTS OR SERVICES FROM FMS VIA THE WEBSITE, THE COST OF SUCH DISPUTED PRODUCTS OR SERVICES (I.E., THE AMOUNT YOU PAID TO FMS FOR SUCH PRODUCTS OR SERVICES). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON-INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THE TWO PRECEDING PARAGRAPHS. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING THEREIN MAY NOT APPLY TO YOU.
Section 15. - Due Authorization.
Section 16. - Non-waiver.
Section 17. - Attorneys' Fees.
Section 18. - Entire Agreement.
Section 19. - Headings.
Section 20. - Governing Law; Venue; Service of Process.
Section 21. - Binding Effect.
Section 22. - Gender and Number.
Section 23. - Severability.
Section 24. - Indemnification.
FMS shall have the exclusive right: (1) to select legal counsel to defend Claims, (2) to direct the defense or settlement of Claims, (3) to make, accept, or reject any offers of settlement of Claims, (4) to enter into any non-monetary settlement, and (5) to admit or deny fault or liability. The provisions of this Section shall, specifically and without limitation, survive the termination of this Agreement.
Section 25. - Contact Information.
Except as otherwise provided, please direct all inquiries and other communications relating to the Website and/or the Services to:
Functional Movement Systems, Inc.
ATTN: Communications Department
P.O. Box 911
Chatham, Va 24531
Section 26. - User to Provide Internet Access.
In order to access the Website and/or use the Services, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
Section 27. - User Compliance with Local Laws.
You warrant and agree that Your access to and use of the Website and/or the Services is in compliance with the Laws governing such access, use, and related conduct in Your geographic region.
Section 28. - Survival.
Any termination, cancellation or expiration of this Agreement notwithstanding, provisions which are by their terms intended to survive and continue shall so survive and continue, including without limitation Sections 7, 9, 11, 13, 14, 17, and 24.
Section 29. - Certification
FMS provides education which can lead to certification. Certification does not authorize you to perform any technique beyond your professional scope of practice. It certifies that you have met the requirements to perform the screen or assessment within your professional scope of practice. Furthermore, it does not authorize you to use any FMS trademarked or intellectual property without the expressed written consent of Functional Movement Systems.
IF YOU DO NOT AGREE TO THE TERMS SET FORTH ABOVE, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE WEBSITE OR SERVICES IN ANY WAY, AND YOU MUST EXIT THE WEBSITE IMMEDIATELY.