Terms of Use

Overview
 
Welcome to PersonalTrainerPages.com ("Website"). Your use of this Website and the content, software and services provided through or in connection with this Website (“Service”) is subject to this Terms of Use Agreement ("Agreement"). Each time you (“Customer”) use our Service, Customer agrees to be bound by this Agreement. If Customer does not agree to this Agreement, Customer must immediately discontinue use of Website and Service. The Website and Service are provided by DreamThis LLC, a California limited liability company.

DreamThis reserves the right to change and update this Agreement as it deems necessary. Customer is responsible for regularly reviewing this Agreement. Customer's continued use of the Service after the effective date of such changes constitutes acceptance of such changes.
 
1. Services and Hosting.
 
Subject to the terms of this Agreement including timely payment of the Fees set forth in this Agreement, DreamThis will provide access to the Services to Customer via the Website. Customer may access the Website, input Customer's own original content for presentation within the Website ("Customer Content"), and use the Website to publish Customer Content. DreamThis will host the Customer Content within the Website and will provide the same level of service and uptime that DreamThis provides generally to other customers of the Service.
 
2. Customer Content.
 
Customer alone shall be responsible for Customer Content. Customer shall not include any content that is illegal, disparaging, pornographic or offensive. Customer acknowledges that DreamThis reserves the right, but does not assume the responsibility, to remove or reject Customer Content in its sole and arbitrary discretion. DreamThis does not assume any responsibility to monitor Customer Content. Customer shall ensure that Customer Content is original. Customer shall be responsible for any products or services offered through Customer Content. Customer shall indemnify and defend DreamThis for any liability arising from claims (a) that Customer Content infringes or misappropriates the privacy, personality, trade secret, trademark, copyright or other intellectual property rights of another person or entity or (b) relating to any products or services offered by Customer, including any products offered through the Service via a third party company as described below.
 
3. Payments
 
     (a) Fees. Customer agrees to pay all set-up, subscription and other fees and charges ("Fees") established by DreamThis as set forth in the Order Form. DreamThis reserves the right to change its Fees, subject to Customer's right to terminate this Agreement and discontinue use of the Website if Customer does not agree with the change in Fees. Customer's continued use of the Website after the effective date of a change in Fees shall be Customer's acceptance of such Fees. The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. DreamThis may require payment for the Initial Term before beginning service. IF CUSTOMER ELECTS FOR CREDIT/DEBIT CARD BILLING, CUSTOMER SHALL ACKNOWLEGE AGREE AND AUTHORIZE DREAMTHIS TO BILL AND/OR CHARGE CUSTOMER'S CREDIT/DEBIT CARD FOR SUCCESSIVE TERMS OF EQUAL OR LESSER LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS AGREEMENT. Otherwise, DreamThis will invoice Customer via e-mail to the Primary Customer Contact provided by Customer. Invoiced fees may be issued on or before the 1st day of each term, and the fees shall be due on the 14th day following invoice date. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term."

Payments must be made in United States dollars. Customer is responsible for providing DreamThis with changes to billing information (such as credit card expiration, change in billing address). DreamThis may charge interest on overdue amounts at the rate of 1.5% per month or the maximum non-usurious rate under applicable law, whichever is lower. DreamThis may suspend or terminate Service without notice if payment for the Service is not received by DreamThis when due.
 
     (c) Taxes. DreamThis shall not be liable for any sales, use, or other taxes, duties or charges imposed by any government agency arising as a result of the provision of the Service or as a result of transactions that occur on the Website or through Customer Content. Customer agrees to take full responsibility for all governmental taxes, duties and charges of any nature associated with the Services used or products sold.
 
4. Suspension/Termination/Refunds.
 
     (a) Suspension of Service. Customer agrees that DreamThis may suspend Services to Customer without notice and without liability if: (i) DreamThis reasonably believes that the Services are being used in violation of the Agreement; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the Agreement; (iii) DreamThis reasonably believes that the suspension of Service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency or as required by law and/or court order. Customer shall pay DreamThis’ reasonable reinstatement fee if Service is reinstituted following a suspension of Service under this subsection.
 
     (b) Termination/Refunds. The Agreement may be terminated by either party without cause and without liability at any time upon ten (10) days prior written notice. If Customer cancels this Agreement prior to the end of the Initial Term or any Term thereafter, DreamThis will not refund Customer for any pre-paid fees or charges in the Term. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which DreamThis may be entitled.
 
5. Hyperlinks.
 
DreamThis may from time to time offer a hyperlink to a third party website for inclusion in Customer Content. Any hyperlinks direct the user to websites belonging to third-party sites ("linked sites") and are provided by DreamThis for Customer’s convenience only. DreamThis does not control linked sites in any way. DreamThis neither expressly nor implicitly (i) represents or warrants the truth or accuracy of any information included in any linked site or (ii) endorses or sponsors any linked site, the content of any linked site, or any products sold or services offered by any linked site. Customer's use of these external websites is at Customer's own risk.
 
6. Fitness Store.
 
The Service enables Customer to offer the products of FUNNctional Fitness Equipment Inc. as part of Customer's Content. Customer agrees that DreamThis is not responsible for purchases made through Customer’s online store or for any errors or loss of data during the transaction process, even if they result in Customer's lost profit. Customer agrees that FUNNctional Fitness Equipment Inc. is the company that handles the fitness store transactions and that all issues related to transactions made through the store, including but not limited to payments due, shipments, and products sold, are to be handled by FUNNctional Fitness Equipment Inc., and not DreamThis. Customer agrees to not misrepresent any products sold through the Service and to actively monitor their email for any order inquiries from users who have made purchases through Customer’s web site and to ensure these inquiries are immediately reported to orders@funnctional.com so that they may be handled in a timely manner.
 
7. Law/Acceptable Use.
 
     (a) Permitted Use. Customer agrees to use the Service only to present Customer Content in connection with Customer’s own fitness business and that any other use of the Service is forbidden without first obtaining the written consent of DreamThis. Customer agrees that it will not reproduce, store, modify, rent, lease, loan, sell, copy, distribute, transmit, transfer, modify, reverse assemble, reverse engineer or otherwise attempt to discover any programming code or any software used in or with the Service.
 
     (b) Termination. DreamThis shall have the right to terminate Service to a Customer without cause at any time. DreamThis may permanently or temporarily terminate, suspend, or otherwise refuse to permit User’s access to this Website without notice and liability, if, in DreamThis' sole determination, User violates any of the terms and conditions, including the following prohibited actions; (i) use the Service for any illegal purpose or to submit, transmit or facilitate the distribution of information or content that is unlawful, harmful, abusive, racially or ethnically offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, libelous, threatening, or in a reasonable person's view, objectionable; (ii) submit, transmit, promote or distribute information or content that is illegal; (iii) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (iv) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (v) upload invalid data, viruses, worms, or other software agents through the Service; (vi) use any robot, spider, scraper or other automated access the Service for any purpose without our express written permission; (vii) impersonate another person or otherwise misrepresent User’s affiliation with a person or entity, conduct fraud, hide or attempt to hide User’s identity; (viii) submit, upload, post, email, transmit or otherwise make available any information or content that User does not have a right to make available under any law or under contractual or fiduciary relationships; (ix) interfere with the proper working of the Service; or, (x) bypass the measures we may use to prevent or restrict access to the Service. Upon termination for any reason, User continues to be bound by this Agreement.

     (c) Offensive Content. Customer may not use the Services to publish, transmit, or facilitate distribution of any content, including Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission, that DreamThis reasonably believes:
  • constitutes pornography, vulgar, obscene, or sexually explicit material;
  • is violent, incites violence, threatens violence, or contains harassing content or hate speech;
  • is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
  • is defamatory, libelous, or violates a person’s privacy;
  • creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
  • improperly exposes trade secrets or other confidential or proprietary information of another person;
  • is intended to assist others in defeating technical copyright or security protections;
  • infringes on another person’s trade or service mark, patent, or other intellectual property rights;
  • is otherwise malicious, fraudulent, or may result in retaliation against DreamThis by offended viewers.
     (d) Security. Customer must take reasonable security precautions. Customer must protect the confidentiality of Customer's password, and Customer should change Customer's password periodically.
 
     (e) Bulk Commercial E-Mail. Customer shall not initiate or enable any bulk commercial e-mail related to the Service or using the Service without the prior written consent of DreamThis, which consent may be withheld or may be conditioned upon compliance with DreamThis policies.
 
     (f) Unsolicited E-Mail. Customer may not send any unsolicited e-mail, either in bulk or individually, to any person who has not indicated that they wish to receive it.
 
     (g) Copyright Protection. Customer may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless Customer has been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
 
     (h) Other. Customer must have valid and current information on file with Customer's domain name registrar for any domain hosted on the DreamThis network. Customer may not use the Service as a remote storage server only. Customer is not permitted to knowingly allow another website or hosting server to link to content files stored on DreamThis’ servers. Users deemed to be using DreamThis’ Services solely as a remote storage server will have their account terminated immediately and all files associated with their account permanently deleted.
 
     (i) Disclaimer. DreamThis is under no duty, and does not by this Agreement undertake a duty, to monitor or police our customers’ activities and disclaims any responsibility for any misuse of the DreamThis Services.
 
     (j) Intellectual Property Rights. The content on the DreamThis Website, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to DreamThis subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the DreamThis web site is provided to Customer AS IS for Customer information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. DreamThis reserves all rights not expressly granted in and to the DreamThis web sites and the Content. Customer agrees to not engage in the use, copying, or distribution of any of the content other than expressly permitted herein, including any use, copying, or distribution of Content for any commercial purposes. Customer agree not to circumvent, disable or otherwise interfere with security related features of the DreamThis web site or features that prevent or restrict use or copying of any Content or enforce limitations on use of the DreamThis web site or the Content therein.
 
8. Customer Information.
 
Customer represents and warrants to DreamThis that the information Customer has provided and will provide to DreamThis is accurate. If Customer is an individual, Customer represents and warrants to DreamThis that he or she is at least 18 years of age. DreamThis may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
 
9. Indemnification.
 
Customer agrees to indemnify and hold harmless DreamThis, DreamThis’ affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s Services in violation of applicable law or this Agreement by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the Services by Customer.
 
10. Disclaimer of Warranties.
 
DREAMTHIS DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, DREAMTHIS DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
 
11. Limitation of Damages.
 
DREAMTHIS SHALL NOT BE LIABLE TO THE CUSTOMER OR END USER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF DREAMTHIS AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR ONE (1) MONTH OF SERVICE.
 
12. Requests for Customer Information.
 
Customer agrees that DreamThis may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that DreamThis believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
 
13. Back Up Copy.
 
Customer agrees to maintain a current copy of all content hosted by DreamThis This notwithstanding any agreement by DreamThis to provide back up Services. Customer understands that DreamThis is not responsible for any damage to data or loss of data.

14. Changes to DreamThis’ Services.
 
Upgrades and other changes in DreamThis’ Services, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. DreamThis reserves the right to change its Services in its commercially reasonable discretion, and DreamThis shall not be liable for any resulting harm to Customer.
 
15. Notices.
 
Notices to DreamThis under the Agreement shall be given via electronic mail to support@dreamthis.com. Notices to Customer shall be given via e-mail to the address listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer and DreamThis may change the notice address by a notice given in accordance with this section.
 
16. Force Majeure.
 
DreamThis shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond DreamThis’ control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
 
17. Governing Law/Disputes.
 
The Agreement shall be governed by the laws of the State of California , exclusive of its choice of law principles, and the laws of the United States of America , as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL A COURT OF COMPETENT JURISDICTION LOCATED IN SAN MATEO COUNTY, CALIFORNIA, DREAMTHIS LLC, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
 
18. Assignment.
 
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer, but may be assigned by DreamThis without restriction.
 
19. Miscellaneous.
 
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.