Terms and Conditions
This Trainer Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and [ENTITY NAME] (“Alto” or “Company”), which provides lead generation to independent contractors who provide personal training services using the Alto Services (as defined below). The Alto Services enable an authorized personal trainer to seek, receive and fulfill requests for training services from an authorized user of Alto’s mobile applications. You desire to enter into this Agreement for the purpose of accessing and using the Alto Services. You acknowledge and agree that Company is a technology services provider that does not provide personal training services. In order to use the Alto Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Company shall be bound by the terms and conditions set forth herein. IMPORTANT: PLEASE NOTE THAT TO USE THE ALTO SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
1.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 “Company Data” means all data related to the access and use of the Alto Services hereunder, including all data related to Users (including User Information), all data related to the provision of Training Services via the Alto Services and the Trainer App, and the Trainer ID.
1.3 “Device” means a mobile telecommunications device.
1.4 “Term” is as defined in Section 12.1.
1.5 “Trainer App” means the mobile application and related technology provided by Company that enables your and other training providers (collectively, “Trainers”) to access the Alto Services for the purpose of seeking, receiving and fulfilling on-demand and schedule-ahead requests for training services by Users, as may be updated or modified from time to time.
1.6 “Trainer ID” means the identification and password key assigned by Company to you that enables you to use and access the Trainer App.
1.7 “Territory” means the cities or metro areas in the United States in which you are enabled by the Trainer App to receive requests for Training Services.
1.8 “Training Services” means your provision of training services to Users via the Alto Services in the Territory.
1.9 “Alto Services” mean Alto’s on-demand and schedule-ahead lead generation and related services licensed by Alto to Trainers that enable training providers to seek, receive and fulfill on-demand requests for training services by Users seeking training services; such Alto Services include access to the Trainer App and Alto’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.10 “User” means an end user authorized by Alto to use the Alto mobile application for the purpose of obtaining Training Services offered by Trainers using the Trainer App.
1.11 “User Information” means information about a User made available to you in connection with such User’s request for and use of Training Services, which may include the User’s name, workout location, contact information and photo.
1.12 “Your Device” means a Device owned or controlled by you: (a) that meets the then-current Company specifications for Devices; and (b) on which the Trainer App has been installed as authorized by Company solely for the purpose of providing Training Services.
2. Use of the Alto Services
2.1Access Fee. Trainer will pay a one-time application fee of $75 to cover on-boarding administration costs
2.2 Trainer IDs. Alto will issue you a Trainer ID to enable you to access and use the Trainer App on Your Device in accordance with this Agreement. Company reserves the right to deactivate your Trainer ID if you have materially breached any provision of this Agreement. You agree that you will maintain your Trainer ID in confidence and not share your Trainer ID with any third party. You will immediately notify Company of any actual or suspected breach or improper use or disclosure of your Trainer ID or the Trainer App.
2.3 Provision of Training Services. When the Trainer App is active, User requests for Training Services may appear to you via the Trainer App. If you accept a User’s request for Training Services, the Alto Services will provide you with certain User Information via the Trainer App, including the User’s first name and workout location. In order to enhance User satisfaction with the Alto Services and your Training Services, it is recommended that you wait at least ten (10) minutes for a User to show up at the requested workout location, i.e. if you have had no communication from the User after accepting the User’s request, you must wait at least ten minutes after you arrive at the designated location before canceling the session. If the User communicates with you during that period, you must wait until the User arrives, but you are not required to continue the workout session beyond the originally scheduled ending time. You acknowledge and agree that once you have accepted a User’s request for Training Services, the Alto Services may provide certain information about you to the User, including your first name, contact information, and location. You shall not contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling Training Services and may not (a) contact any User except by means of the Trainer App or (b) contact any User except with respect to scheduling or following up on a scheduled training session. As between Company and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Training Services; and (b) except for the Alto Services, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Training Services. You understand and agree that you have a legal obligation under the Americans with Disabilities Act and similar state laws to train Users with disabilities (as defined by applicable state and Federal law).
2.4 Your Relationship with Users. You acknowledge and agree that your provision of Training Services to Users creates a direct business relationship between you and the User. Company is not responsible or liable for the actions or in actions of a User in relation to you, or your activities. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Training Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User, you, or other third party. You acknowledge and agree that Company may release your contact and/or insurance information (see Section 8 below) to a User upon such User’s reasonable request. You acknowledge and agree that, unless specifically consented to by a User, you will not permit individuals other than Users to participate in any solo or group Training.
2.5 Your Relationship with Company. You acknowledge and agree that Company’s provision to you of the Trainer App and the Alto Services creates a direct business relationship between Company and you. Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Training Services, your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the Trainer App or the Alto Services. You retain the option, via the Trainer App, to attempt to accept or to decline or ignore a User’s request for Training Services via the Alto Services, or to cancel an accepted request for Training Services via the Trainer App, subject to Company’s then-current cancellation policies. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Alto Services; and (ii) engage in any other occupation or business. Notwithstanding the above, you agree that when you choose to provide services hereunder, you shall comply with any and all policies and guidelines set by Company, as they may be amended from time to time (“Policies”). Company retains the right to deactivate or otherwise restrict you from accessing or using the Trainer App or the Alto Services in the event of a violation or alleged violation of this Agreement, your disparagement of Company or any of its Affiliates, your act or omission that causes harm to Company’s or its Affiliates’ brand, reputation or business as determined by Company in its sole discretion.
2.6.1 You acknowledge and agree that: (a) after receiving Training Services, a User will be prompted by Alto’s mobile application to provide a rating of you and such Training Services and, optionally, to provide comments or feedback about you and such Training Services; and (b) after providing Training Services, you will be prompted by the Trainer App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith. Your feedback regarding a User’s flexibility, strength and endurance will be shared with that User upon the User’s request. Your other feedback about Users may be shared with those Users as Company may in its sole discretion determine.
2.6.2 You acknowledge that Company desires that Users have access to high-quality services via the Alto Services. In order to continue to receive access to the Trainer App and the Alto Services, you must comply with the Company’s Policies, as amended from time to time and must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Company for your Territory, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your Training Services rather than your compliance with any of the Company’s policies or recommendations. You may rebut any negative review by a User. In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, in Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Trainer App and the Alto Services. Additionally, you acknowledge that your repeated failure to accept User requests for Training Services while you are logged in to the Trainer App creates a negative experience for Users of the Alto Services. If you do not wish to accept User requests for Training Services for a period of time, you agree that you will log off of the Trainer App. In addition, you agree that you will act respectfully and professionally with Users at all times, and will engage in no indecent, aggressive, inappropriate or demeaning behavior with any User. Specifically, you agree to employ only appropriate tactile cueing techniques with Users, which shall include only using the palm or back of the hand or the forearm for correcting the User And shall not include touching the User in the vicinity of the User’s groin, glute or chest in any manner.
2.6.3 Company and its Affiliates reserve the right to use, share and display your User and other ratings, and comments, in any manner in connection with the business of Company and its Affiliates without attribution to you or your approval. You acknowledge and agree that Company and its Affiliates are distributors (without any obligation to verify) and not publishers of your and other User ratings, and comments, provided that Company and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s or its Affiliates’ content policies.
2.7.1 Company requires you to use Your Device in providing Training Services.
2.7.2 When using Your Devices hereunder: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) Company shall make available the Trainer App for installation on Your Device. Company hereby grants you a personal, non-exclusive, non-transferable license to install and use the Trainer App on Your Device solely for the purpose of providing Training Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Trainer App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Trainer App from the Trainer-Provided Device in the event that you cease to provide Training Services or otherwise engage with the Alto Services using Your Device. You agree that: (i) use of the Trainer App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; (ii) use of the Trainer App on Your Device as an interface with the Alto Services may consume very large amounts of data through the data plan; and (iii) you are responsible for maintaining the current version of the Trainer App on Your Device and complying with such current version. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
3. You and Your Qualifications
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain a valid certification to provide Training Services in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Training Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you will be subject to background checks from time to time in order to qualify to provide, and remain eligible to provide, Training Services. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Trainer App or the Alto Services if you fail to meet the requirements set forth in this Agreement.
3.2 Documentation. To ensure your compliance with all requirements in Section 3.1 above, you must provide Company with written copies of all such licenses, permits, approvals, authority, registrations, certifications and insurance information (see Section 8 below) prior to your provision of any Training Services. Thereafter, you must submit to Company written evidence of all such licenses, permits, approvals, authority, registrations, certifications and insurance information as they are renewed. Company shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations, certifications and insurance information from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Company reserves the right to independently verify your documentation from time to time in any way Company deems appropriate in its reasonable discretion.
4. Financial Terms
4.1 Fee Calculation and Your Payment. Users will be charged and pay you a fee for each instance of completed Training Services provided to a User that are obtained via the Alto Services (“Fee”). You acknowledge and agree that the Fee provided under the Fee Calculation is the only payment you will receive in connection with the provision of Training Services, and that neither the Fee nor the Fee Calculation includes any gratuity; gratuities are not permitted. You: (i) appoint Company as your limited payment collection agent solely for the purpose of accepting the Fee, and, depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the Alto Services; and (ii) agree that payment made by User to Company (or to an Affiliate of Company acting as an agent of Company) shall be considered the same as payment made directly by User to you. Company agrees to remit, or cause to be remitted, to you on at least a monthly basis: (a) the Fee less the applicable Platform Service Fee (as defined below); and (b) depending on applicable laws in the Territory, certain taxes and ancillary fees.
4.2 Changes to Fee Calculation. Company reserves the right to change the Fee Calculation at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of changes to the base Fee. Continued use of the Alto Services after any such change in the Fee Calculation shall constitute your consent to such change.
4.3 Fee Adjustment. Company reserves the right to: (i) adjust the Fee for a particular instance of Training Services (e.g., you failed to properly start or end a particular instance of Training Services in the Trainer App, technical error in the Alto Services, etc.); or (ii) cancel the Fee for a particular instance of Training Services (e.g., User is charged for Training Services that were not provided, in the event of a User complaint, fraud, etc.). Company’s decision to reduce or cancel the Fee in any such manner shall be exercised in a reasonable manner, but shall be final and binding upon you.
4.4 Platform Service Fee. In consideration of Company’s provision of the Trainer App and the Alto Services for your use and benefit hereunder, you agree to pay Company a platform service fee on a per Training Services transaction basis calculated as a percentage of the Fee determined by the Fee Calculation, as provided to you via email or otherwise made available electronically by Company from time to time for the applicable Territory (“Platform Service Fee”). In the event regulations applicable to your Territory require taxes to be calculated on the Fee, Company shall calculate the Platform Service Fee based on the Fee net of such taxes. Company reserves the right to change the Platform Service Fee at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of such change. Continued use of the Alto Services after any such change in the Platform Service Fee calculation shall constitute your consent to such change.
4.5 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Training Services that have been accepted by you via the Trainer App at any time up to 24 hours prior to your arrival for the training session. In the event that a User cancels an accepted request for Training Services, Company may charge the User a cancellation fee (“Cancellation Fee”) on your behalf. If charged, this Cancellation Fee shall be deemed the Fee for the cancelled Training Services for the purpose of remittance to you hereunder.
4.6 Receipts. As part of the Alto Services, Company provides you a system for the delivery of receipts to Users for Training Services rendered. Upon your completion of Training Services for a User, Company prepares an applicable receipt and issues such receipt to the User via the User App Such receipts are also provided to you via the Trainer App available to you through the Alto Services [two (2) business days after completion of the related Training Services]. Receipts include the breakdown of amounts charged to the User for Training Services and may include specific information about you. Any corrections to a User’s receipt for Training Services must be submitted to Company in writing within four (4) business days after the completion of such Training Services. Absent such a notice, Company shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fee.
4.7 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Company and its Affiliates may seek to attract new Users to the Alto Services and to increase existing Users’ use of the Alto Services. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
4.8 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Training Services as required by applicable law; and (b) provide Company with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Training Services. Notwithstanding anything to the contrary in this Agreement, Company may in its reasonable discretion, based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Training Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.8 directly to the applicable governmental tax authorities on your behalf or otherwise.
5. Proprietary Rights; License
5.1 License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Alto Services (including the Trainer App on Your Device) solely for the purpose of providing Training Services to Users and tracking resulting Fees. All rights not expressly granted to you are reserved by Company, its Affiliates and their respective licensors.
5.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Alto Services, Trainer App or any Company Data in any way; (b) modify or make derivative works based upon the Alto Services or Trainer App; (c) improperly use the Alto Services or Trainer App, including creating Internet “links” to any part of the Alto Services or Trainer App, “framing” or “mirroring” any part of the Alto Services or Trainer App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Alto Services or Trainer App; (d) reverse engineer, decompile, modify, or disassemble the Alto Services or Trainer App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Alto Services or Trainer App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Alto Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Alto Services; or (iv) attempt to gain unauthorized access to the Alto Services or its related systems or networks.
5.3 Ownership. The Alto Services, Trainer App and Company Data, including all intellectual property rights therein, and any Company Devices are and shall remain (as between you and Company) the property of Company, its Affiliates or their respective licensors. Neither this Agreement nor your use of the Alto Services, Trainer App or Company Data conveys or grants to you any rights in or related to the Alto Services, Trainer App or Company Data, except for the limited license granted above. Other than as specifically permitted by the Company in connection with the Alto Services, you are not permitted to use or reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "ALTO Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the ALTO Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
6.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Company Data, Trainer IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) either (x) that such party designates as being proprietary or confidential, or (y) of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided that Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof, and provided further that the party disclosing the Confidential Information to its Permitted Persons is responsible for the conduct of such Permitted Persons; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-keeping requirements).
6.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7.1 Disclosure of Your Information. Subject to applicable law, Company and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Company Data) about you or any Training Services provided hereunder if: (a) there is a complaint, dispute or conflict between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Company or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Company’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property or security of Company or its Affiliates, the Alto Services or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Alto Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Company or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, legally actionable or otherwise objectionable activity); or (e) it is required or necessary, in Company’s or any Affiliate’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Alto Services. You understand that Company may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
7.2 Company and its Affiliates may collect your personal data during the course of your application for, and use of, the Alto Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Company and its Affiliates, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.1 You agree to maintain during the Term liability insurance that provides protection against bodily injury and property damage to third parties in the amount of $1 million per occurrence or as required by each state in which you provide Services.
You agree to provide Company and its Affiliates a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.1 upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company. Company shall have no right to control your selection or maintenance of your policy. You must be a named insured, for which a premium is charged, on the insurance policy required in this Section 8.1 at all times.
8.2 You agree to maintain during the term of this Agreement workers’ compensation insurance, if and to the extent that it may be required by applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
8.3 If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Company, to resolve them with your insurer(s).
8.4 Company may maintain during the term of this Agreement insurance related to your provision of Training Services as determined by Company in its reasonable discretion, provided that Company and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you or your vehicle. You are required to promptly notify Company of any injuries to You or a User that occur while providing Training Services and to cooperate and provide all necessary information related thereto.
9. Representations and Warranties; Disclaimers
9.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the Term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws, rules and procedures in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide Training Services pursuant to this Agreement, and the rules and policies of any fitness facility in which you provide Training Services (for the avoidance of doubt, the term “facility” does not include a hotel or other place whose principal function is not the provision of fitness training services); and (d) you will not permit any non-User to participate in any Training Services you provide hereunder.
9.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE ALTO SERVICES, TRAINER APP AND THE COMPANY DATA ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE ALTO SERVICES, TRAINER APP OR THE COMPANY DATA: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR TRAINING SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE TRAINING SERVICES FROM YOU, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE ALTO SERVICES AND TRAINER APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE ALTO SERVICES OR TRAINER APP. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
9.3 No Service Guarantee. COMPANY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE ALTO SERVICES OR TRAINER APP. YOU ACKNOWLEDGE AND AGREE THAT THE ALTO SERVICES OR TRAINER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE ALTO SERVICES OR TRAINER APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATION AND YOUR DEVICE, AND COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
10. Indemnification. You shall indemnify, defend (at Company’s option) and hold harmless Company and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Training Services or use of the Alto Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
11. Limits of Liability. COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF COMPANY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PLATFORM SERVICE FEES ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12. Term and Termination
12.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein (the “Term”).
12.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement or deactivate your Trainer ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to provide Training Services, or as otherwise set forth in this Agreement.
12.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Trainer App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5.3, 4.7, 4.8, 5.3, 6, 7, 9, 10, 11, 12.3, 13 and 14 shall survive the termination of this Agreement.
13. Relationship of the Parties
13.1 Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you.
13.2 You have no authority to bind Company or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Company or its Affiliates. Where, by implication of
mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the commercial rules of American Arbitration Association (the “Rules”) in force on the date when the Notice of Arbitration is submitted in accordance with the Rules.
The parties shall attempt to jointly designate the sole arbitrator within 30 days from the date when the Notice of Arbitration was received by the Respondent (the date of such receipt being referred to as the “Reference Date”). In the event that the parties cannot agree on a designation of the sole arbitrator within 30 days from the Reference Date, then there shall be three arbitrators, one designated by the initiating party within 45 days from the Reference Date, the second designated by the other party within 45 days of the Reference Date, and the third, who shall act as presiding arbitrator, designated by the two-party designated arbitrators within 30 days of the designation of the first and second arbitrators. If any arbitrators are not designated within these time periods, the American Arbitration Association shall proceed with the appointment(s).
The arbitration shall be conducted in New York, New York.
The arbitral proceedings shall be conducted in English.
All capitalized terms contained in this Section 14 that are not here defined shall have the meaning assigned by the Rules.
15. Miscellaneous Terms
15.1 Modification. In the event Company modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance, in accordance with the terms of this Agreement,of the modified Agreement. Company reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Alto Services, or downloading, installing or using the Trainer App, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fee Calculations. Continued use of the Alto Services or Trainer App after any such changes shall constitute your consent to such changes.
15.2 Supplemental Terms; Terms of Service. Supplemental terms may apply to your use of the Alto Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict. You are also subject to the Terms of Service for the Alto website and app (“TOS”), which are not Supplemental Terms hereunder. This Agreement shall prevail over the TOS in the event of a conflict.
15.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
15.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Company may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Company’s business, equity or assets.
15.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
15.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
15.7 Notices. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Alto Services. Any notice delivered by you to Company under this Agreement will be delivered by contacting Company at [email@example.com]
15.8 Governing Law. This Agreement is governed by the internal laws of the State of New York, United States of America, with regard to conflicts of law principles (“New York Law”). To the extent that a court of competent jurisdiction holds that this Agreement is not governed by New York Law, in whole or in part, you and Alto hereby agree that this Agreement shall be amended as necessary to comply with the law applied by such court.
PLEASE READ THESE TERMS CAREFULLY. YOU ARE AGREEING TO BE BOUND BY THESE TERMS.
THE SERVICE The Service is comprised of (i) the Alto app (“App”); (ii) the Alto website, currently located at (and/or any successor or additional website(s) owned or operated by or for Alto)(“Site”); and (iii) any other technology and/or services that Alto provides its users. Alto reserves the right, in its absolute discretion, to withdraw or modify the Service at any time without prior notice and with no liability.
USER DATA/ MATERIAL The Service may enable you to make content available to other users of the Service, such as trainers or friends with whom you choose to work out, your physician, or your health insurance carrier, and to access content made available by such persons or other users of the Service as you may direct. “User Data/Material” is any material you provide through the use of the Service, including but not limited to, text, data, software, graphics, images (e.g. photos, drawings), audio, video, interactive features, feedback, ratings, suggestions and comments (e.g. to bulletin boards, chats, discussion groups, feedback areas, newsgroups or e-mail). You are solely responsible for any User Data/Material that you upload and publish to the Service, including complying with these Terms. In order to upload any User Data/Material to the Service, you must have “accepted” these Terms before submitting the User Data/Material through the Service, and you must have an active, authorized account with Alto.
You retain all of your rights in your User Data/Material. You shall be solely responsible for your own User Data/Material and the consequences of posting or publishing it on the Service. In connection with User Data/Material that you make available on the Service, you expressly represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Alto to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Data/Material to enable inclusion and use of the User Data/Material as part of the Service and in the manner contemplated by these Terms. By submitting, posting, uploading, or otherwise providing User Data/Material to Alto, you hereby grant (or warrant that the owner of such rights has expressly granted) Alto a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sublicensable and transferable license to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform and transmit the User Data/Material in connection with the Service and Alto (and its successors) business as permitted hereunder. You hereby waive all moral rights to the User Data/Material for the benefit of authorized uses by Alto. You also hereby grant, to each authorized user of the Service whom you authorize to receive your User Data/Material, a non-exclusive license to access your User Data/Material through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Data/Material as permitted through the functionality of the Service and under these Terms.
Alto shall have no obligation to monitor any User Data/Material. However, Alto and its agents reserve the right to monitor any User Data/Material from time to time for any lawful purpose. Alto may, without notice to you, remove or block any User Data/Material from the Service, including disabling access to any User Data/Material that you have downloaded through the Service.
You acknowledge and agree that Alto has limited practical ability to control or monitor possible infringement of your rights in User Data/Material by other parties and that Alto assumes no responsibility for controlling or monitoring for possible infringement of such rights by third parties. In addition, Alto is not responsible for enforcing your rights in User Data/Materials, including filing suit or taking other legal action against infringers. You acknowledge and agree that the internet or other communications channels through which you may post or access User Data/Material may not be secure, and that Alto is not responsible for the security of your User Data/Material in transit to or from Alto.
REGISTRATION Registration and setting up an Alto account are required to view most User Data/Material provided as part of the Service, to use certain functionality of the Service, to post User Data/Material, and to participate in programs we may sponsor from time to time. All users of the Service who wish to schedule or participate in a session with a trainer through the Service must register.
CONTENT ON THE SERVICE You understand that by using the Service you may be exposed to User Data/Material from a variety of sources, and to content from various publishers, as well as to Alto Content (defined below), and that Alto is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content or User Data/Material. You further understand and acknowledge that you may be exposed to content or User Data/Material that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Alto with respect thereto.
You acknowledge and agree that the views expressed through the Service reflect those of the individual contributors and not necessarily those of Alto.
USER CONDUCT As a condition of use, you agree not to use the Service for any purpose that is unlawful. You agree to abide by all applicable local, state, national and international laws and regulations, including, without limitation, all intellectual property laws (such as, U.S. copyright laws). Any unauthorized use of the Service is expressly prohibited.
By way of example, and not as a limitation, you agree not to (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any User Data/Material using any communications service or other service available on or through the Service, that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; or (ii) is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, profane, pornographic or obscene, or promotes hate or incites violence; or (iii) misrepresents the source or identity of any content; or (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”) or a chain letter, a pyramid scheme or any other similar solicitation; or (v) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of Alto or any third party; or (vi) impersonates, or falsely indicates an affiliation with, any person or entity, including, without limitation, any employee or representative of Alto; or (vii) constitutes an offer, for sale or otherwise, of firearms, explosives, weapons, tobacco products, controlled substances, pharmaceutical products, counterfeit or stolen articles, registered or unregistered securities, or any items that would cause Alto to violate any applicable law or regulation; or (viii) interferes with the ability of any other user to access and make use of the Service. Alto may, but has no obligation to, monitor your use of the Service and terminate your account for violation of the above.
Additionally, you agree that you will not: (i) take any action that imposes, or may impose, in Alto’s sole discretion, an unreasonable or disproportionately large load on Alto’ infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Alto may use to prevent or restrict access to the Service, other accounts, or computer systems or networks connected to the Service; or (iv) interfere with any other user’s enjoyment of the Service, including, without limitation, accessing an Alto account of an Alto user that is not yours.
You may not (and may not permit others to), directly or indirectly, modify, translate, decompile, disassemble, or reverse engineer any part of the Service or any content available through the Site (except to the limited extent applicable laws specifically prohibit such restriction), or copy, rent, lease, distribute, or otherwise transfer or sublicense any or the rights that you receive hereunder. In addition, you may not remove any proprietary notices or labels.
You shall not launch or otherwise use any robot, spider, scraper or other automated means to create an account or access the Service in a manner which sends more request messages to the Alto server in any given period of time than a typical human would normally produce in the same period by using a conventional on-line web browser to read, view and submit materials. Notwithstanding the foregoing, we grant the operators of search engines permission to use robots to copy materials from the site for the sole purpose of creating publicly-available searchable indexes of the materials, but not caches or archives of the materials; provided, that we reserve the right to revoke these exceptions either generally or in specific cases.
You agree that you shall not harvest or collect information from the Service, including, without limitation, information about other users of the Service. The use of any information learned through the Service or while in the App or the Site is limited to the express purposes set forth in these Terms; all other uses are strictly prohibited.
If you are a trainer, you agree that you will not schedule a session with any current or former user of the Service except through the Service.
OWNERSHIP Except for User Data/Material, the content accessible through the Service, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features (collectively, the “Alto Content”) and the trademarks, service marks and logos contained therein (the “Marks”), are owned by or licensed to Alto, and subject to copyright and other intellectual property rights under United States and foreign laws and international are conventions. Except as set forth in these Terms, the Alto Content, Marks, and User Data/Material are provided to you for your information and non-commercial, personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever except as set forth in these Terms or without the prior written consent of the respective owners. Alto reserves all rights not expressly granted in and to the Service and the Alto Content. If you download or print a copy of the Alto Content, or User Data/Material, you must retain all copyright and other proprietary notices contained in or on such content and material. You agree not to circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Alto Content, Marks or User Data/Material.
COPYRIGHT POLICY Alto respects the rights of copyright holders. We reserve the right to terminate the access, profile or agreement with any user of the Service who infringes third party copyright or other third party intellectual property rights upon prompt notification to us by the third party rights holder or its legal agent. Without limiting the foregoing, any person who or which believes that his, her or its intellectual property has been copied and posted via the Service in a way that constitutes infringement shall provide us with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the rights holder; (b) an identification and location on the Service of the property that is claimed to be infringed; (c) a written statement by such person that he, she or it has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) such person’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such person that the foregoing information in the notice is accurate and, under penalty of perjury, that the person delivering the notice is the owner of the property in question or authorized to act on the owner’s behalf. Notices to us regarding any alleged infringement should be directed to us at firstname.lastname@example.org
TERMINATION Alto may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately. You may terminate your use of the Service at any time, provided that all provisions of these Terms, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. If you terminate your account, you may permanently lose access to all User Data/Materials you submitted to or through the Service.
DISCLAIMER OF WARRANTY THE SERVICE, ALTO CONTENT AND MARKS ARE PROVIDED BY ALTO “AS IS” AND “AS AVAILABLE”. ALTO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT THE SERVICE OR ITS CONTENT OR MARKS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, ALTO DISCLAIMS ALL WARRANTIES REGARDING THE SERVICE AND ITS CONTENTS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF CONTENT, NON-INFRINGEMENT, OR THE AVAILABILITY OR QUALITY OF ANY PRODUCTS OR SERVICES AVAILABLE VIA THE SERVICE (EXCEPT AS MAY BE SET FORTH IN ANY LICENSE OR OTHER AGREEMENT RELATED TO THOSE PRODUCTS OR SERVICES).
LIMITATION OF LIABILITY IN NO EVENT SHALL ALTO OR ITS AFFILIATES, OWNERS, MANAGERS, SUBSIDIARIES, PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OWNERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE) ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE, OR ANY CONTENT, PRODUCTS OR SERVICES DISTRIBUTED ON OR PROVIDED THROUGH THE SERVICE, WHETHER AS A RESULT OF ERRORS, OMISSIONS, LOSS OF DATA, DEFECTS, VIRUSES, INTERRUPTIONS OR DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER CAUSE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ALTO, ITS SERVICE USERS, OR ITS SUPPLIERS HAVE BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALTO ASSUMES NO LIABILITY FOR: ANY ERRORS, MISTAKES OR INACCURACIES IN OR OF ANY CONTENT, INCLUDING BUT NOT LIMITED TO ANY USER DATA/MATERIAL OR VIDEO MATERIAL AND PUBLISHER MATERIAL; PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; ANY UNAUTHORIZED ACCESS TO OR USE OF THE ALTO SERVERS AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; ANY VIRUSES, BUGS, TROJAN HORSES, WORMS OR OTHER MALICIOUS CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; AND/OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT, INCLUDING ANY USER DATA/MATERIAL, POSTED, EMAILED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE. YOU AGREE THAT USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. FURTHER, ALTO DOES NOT ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE, INCLUDING TRAINING SERVICES, ADVERTISED OR OFFERED BY ANY TRAINER OR OTHER THIRD PARTY THROUGH THE SERVICE. ALTO WILL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR ANY TRANSACTION BETWEEN YOU AND ANY TRAINER OR OTHER THIRD PARTY (INCLUDING BUT NOT LIMITED TO THE OWNER OR OPERATOR OF ANY PHYSICAL LOCATION AT WHICH YOU CONSUME ANY TRAINING SERVICES OR PERFORM ANY PHYSICAL ACTIVITIES), WITH RESPECT THERETO, OR ANY PHYSICAL ACTIVITIES IN WHICH YOU MAY ENGAGE WITH SUCH TRAINER OR THIRD PARTY, WITHOUT REGARD TO THE PHYSICAL LOCATION IN WHICH YOU MAY ENGAGE IN SUCH ACTIVITIES.
YOU SPECIFICALLY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES THAT "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." SOME JURISDICTIONS RESTRICT THE LIMITATION OF LIABILITY OR DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION You agree to defend, indemnify and hold harmless Alto and its owners, managers, affiliates, subsidiaries and distribution partners and their respective owners, officers, managers, directors, employees and/or agents (collectively, “Alto Indemnitees”) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms; (iii) your violation, alleged or actual, of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that any of User Data/Material you upload and publish on the Service caused damage to a third party; or (v) your gross negligence or willful malfeasance (collectively, “Claims”). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Alto Indemnitees. Alto shall have the right, in its sole discretion, to select its own legal counsel to defend the Alto Indemnitees from any Claims (but by doing so shall not waive your indemnity obligations), and you shall be solely responsible for the payment of all reasonable attorney’s fees incurred by the Alto Indemnitees in connection therewith. You shall not, without the prior express written approval of Alto, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any Alto Indemnitee. This defense and indemnification obligation will survive the termination or expiration of these Terms and your use of the Service. Although Alto will not be liable for your losses caused by any unauthorized use of your Alto account, you may be liable for the losses of Alto or others due to such unauthorized use.
PAYMENT Before you begin to use our Service under your Alto account, you will be required purchase credits for your lessons. You agree to pay all fees charged to your Alto account based on Alto’s fees & charges. If your Payment Method cannot be charged for any reason, Alto reserves the right to either suspend or terminate your Alto account and terminate these Terms of Service. All payments will be in US dollars. All payments will be processed by our third-party payment partner, subject to our partner’s terms and conditions www.stripe.com
Alto and Alto's third party payment service provider may receive updated Payment Method information from your credit card or Payment Method issuer. Such updated Payment Method information, if provided, is provided to Alto and Alto's third party payment service provider at the election of your credit card and Payment Method issuer. Neither Alto nor Alto's third party payment service provider is responsible for the dissemination of your credit card or Payment Method information. It is at the sole election of your credit card or Payment Method issuer. Your credit card or payment method issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card or Payment Method issuer with regards to your right to opt out of the update service.
Acceptance. If you do not accept all of the terms and conditions set forth in these Terms, you may not access or use the Service.
Ability to Accept. The Service is only available to users who are over the age of 18, or an emancipated minor, or possess legal parental or guardian consent, and are fully able to and competent to enter into and abide by the terms, conditions, obligations, representations and warranties set forth in these Terms.
Modification. Alto shall have the right to modify these Terms at any time, which modification shall be effective immediately following Alto’s posting of such change on the Site. We recommend that you check the Site regularly for any such changes. Your use of the Service following such posting shall be deemed to constitute your acceptance of such modification.
Enforceability and Waiver. If any provision of these Terms is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of these Terms will not be affected. No delay or failure by Alto to exercise or enforce any of its rights under these Terms will act as a waiver of such rights.
Links to Third Party Websites. As a convenience for its users, Alto may provide links on the Site to other websites owned by third parties. Unless otherwise stated, Alto does not endorse or control these third parties and takes no responsibility for them or their websites.
Export and International Use. The Service is controlled and offered by Alto from its facilities in the United States of America. Alto makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of New York without regard to or application of choice of law rules or principles (“New York Law”). You agree that the Service shall be deemed to be solely based in the State of New York, and that the Site shall be deemed a passive website that does not give rise to personal jurisdiction over Alto, either specific or general, in jurisdictions other than the State of New York. To the extent that a court of competent jurisdiction holds that these Terms are not governed by New York Law, in whole or in part, you hereby agree that these Terms shall be amended as necessary to comply with the laws applied by such court.
Transferability. Alto may transfer this Agreement in whole or in part in its sole discretion.