PUBLISHED DATE: January 09, 2017

Fitness Merchant Terms of Service

These terms and conditions are effective immediately for those creating and using accounts.

The following Terms (as defined below) for the Fitness Merchant management system offered by ReserveKing, LLC., and the website located at www.reserveking.com (the “Site,” and collectively, the “Service”) are a legal contract between you, on behalf of the Fitness Merchant, or other entity requesting the Service from ReserveKing, (“Fitness Merchant” or “you”) and ReserveKing, regarding your use of the Service as offered by ReserveKing. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE AND/OR USING THE SITE. By signing up for the ReserveKing Service or using the Site or Service for any commercial purpose, you signify your assent to these Terms of Service (the “Terms”). If you do not agree to these Terms, do not use the Service. ReserveKing and Fitness Merchant are each hereinafter referred to as a “Party” and collectively as the “Parties”. “Affiliates” means any parent or subsidiary of ReserveKing, LLC.

1. Overview and Account Signup
1. General. ReserveKing allows users of the Site or affiliate websites (“Users”) to make online reservations at participating Fitness Merchants through the Service. The Service is intended to replace ‘pen and paper’ reservation book and existing front-of-house Fitness Merchant management methods by allowing Users to view the availability of seats at a Fitness Merchant or other venue and make reservations without having to call into the Fitness Merchant, and allowing Fitness Merchant personnel to manage the venue’s availability, floor, and guestbook via nearly any internet-enabled device (“Service Device”).
2. Accounts. In order for the Fitness Merchant to use the Service and as part of the signup process, you are required to register to create an account on the Service (“Fitness Merchant Account”). As part of that registration, Fitness Merchant will provide all applicable information requested during the registration process through the management interface on the Service, including but not limited to the Fitness Merchant’s address, operating hours, seating capacity, seating configuration, and any common corporate ownership with other Fitness Merchants. By creating a Fitness Merchant Account on the Site, you represent and warrant that: (i) you are of legal age to form a binding contract; (ii) you are an authorized representative of the Fitness Merchant or other entity with the authority to bind such party to these Terms, (iii) all information provided within the application is true; and (iv) you agree to be bound by these Terms on behalf of the Fitness Merchant or its parent entity (as applicable).
3. Approval at ReserveKing’ Sole Discretion. After the registration process is complete, ReserveKing will review the information submitted by Fitness Merchant. ReserveKing reserves the right to approve or deny use of the Service for Fitness Merchant (or the applicable parent entity) at its sole discretion. Any continued use of the Service is subject to the Fitness Merchant’s continued compliance with these Terms.
4. Additional Features. ReserveKing may offer certain optional features and functionalities for Fitness Merchants (“Additional Features”), including the ability for Fitness Merchants to provide targeted offers or deals to Users. The use of any Additional Features may require additional fees and require Fitness Merchant to agree to additional terms and conditions specific to those Additional Features, which will be provided to Fitness Merchant at the time Fitness Merchant elects to utilize those Additional Features through the Service.
2. Reservation Policies
1. Service Configuration and License. Prior to offering the Service to Users, you must use the management interface in your Fitness Merchant Account to provide basic information and configure the dates and times for which reservations will be available. That includes, without limitation, providing the Fitness Merchant location's address, operating hours, seating capacity, seating configuration, and any common corporate ownership with other Fitness Merchants. You may also upload photographs and additional information for the Fitness Merchant to be displayed to Users. By providing any information to the Service, you grant ReserveKing and its corporate affiliates a nonexclusive license to use, reproduce, distribute, modify, adapt, and publicly display the information you provide and derivatives thereof in connection with the Service and ReserveKing’ business, including, without limitation, for marketing, promoting, and redistributing part or all of the Service (and derivative works thereof) and using such information for analytics.
2. Acceptance of Reservations. ReserveKing offers the Service to facilitate and assist Users in making reservations at participating Fitness Merchants, and Users make their reservations based upon the availability of seating at the Fitness Merchant. When a User makes a reservation for an available reservation slot on the Service, that reservation is binding upon Fitness Merchant and may not be cancelled except as provided in section c below. All reservations are between the Fitness Merchant and User, and you agree to honor all reservations made through the Service. Fitness Merchant may, in its discretion, choose to “overbook” its seating capacity by accepting multiple reservations for a single reservation slot, but Fitness Merchant acknowledges and agrees that Fitness Merchant is solely responsible and that ReserveKing has no responsibility for any overbooking of reservations, whether made through the Service or otherwise.
3. Reservation Cancellation Policy.
1. User Cancellations. ReserveKing requires that all User-initiated cancellations of reservations be made at least 24 hours before the scheduled time of the reservation. The User may cancel the reservation through the Service.
2. User Credit Card Holds and Cancellation Fees. Users are required to provide a credit card to make a reservation for the Service, including for special occasions or for large parties. Users will be required to provide their credit card/payment information during the reservation process. The User’s credit card information will be stored with ReserveKing’ third-party credit card processor and will not be made available to either ReserveKing or Fitness Merchant. If the User is a “no-show” and fails to cancel their reservation within the required amount of time, the user will be automatically charged the reservation fee. ReserveKing will facilitate the charge and send the payment to Fitness Merchant, minus applicable service fees. Should the User challenge the charge through the User’s issuing bank (a “chargeback”), ReserveKing will make a commercially reasonable effort to oppose the chargeback if ReserveKing determines, at ReserveKing’ sole discretion, opposition is merited. If the User’s issuing bank enforces the chargeback and ReserveKing has distributed the charged-back funds to Fitness Merchant, Fitness Merchant agrees to reimburse ReserveKing the chargeback amount, plus any associated fees, and that ReserveKing may elect to charge the total amount to Fitness Merchant’s credit card on file with ReserveKing. In the alternative, ReserveKing may, at its sole discretion, offset the chargeback amount against any other amounts owed by ReserveKing to Fitness Merchant whether in connection with these Terms or any other services provided by ReserveKing to Fitness Merchant.
3. Fitness Merchant Cancellations. ReserveKing requires that all Fitness Merchant-initiated cancellations of reservations be made at least 24 hours before the scheduled time of the reservation. The Fitness Merchant will cancel the reservation through the Service. Fitness Merchant agrees to abide by the Cancellation Policy for all reservations made on the Service.
4. Fitness Merchant Credit Card Holds and Cancellation Fees. Fitness Merchants are required to provide a credit card/payment information. The Fitness Merchant credit card information will be stored with ReserveKing’ third-party credit card processor. If the Fitness Merchant is a “no-show” and fails to cancel their reservation within the required amount of time, the user will be automatically refunded the reservation fee, and the Fitness Merchant may incur a penalty fee.
3. Responsibility for User Interactions
1. You acknowledge that ReserveKing provides a Service that allows Users to make online reservations with Fitness Merchant and is not in any way responsible for any in-person interactions with the User as a result of a reservation or for a User’s experience at the Fitness Merchant. You are solely responsible and liable for (i) any communications with Users by Fitness Merchant personnel, whether through the Service or otherwise; (ii) User’s experience at the Fitness Merchant; (iii) and Fitness Merchant agrees to indemnify ReserveKing for any claims arising out of or in connection with the foregoing.
4. Equipment and Training
1. Online Service. Fitness Merchant personnel may access and manage reservations made through the Service on any Service Device by accessing the Fitness Merchant Account for the Fitness Merchant. Fitness Merchant is solely responsible for the installation and purchase of Service Devices needed to access the Service for its personnel.
2. Required Facilities. Fitness Merchant is solely responsible, at Fitness Merchant’s expense, for providing (i) a suitable location for the installation and operation of the Service Devices, and any other related peripheral equipment and interconnect devices; (ii) any electrical power and any required internet service for Service Devices used by the Fitness Merchant; and (iii) any replacement, service, or repair of the Service Devices. ReserveKing is not responsible for any reservations or revenue lost during any malfunction of a Service Device or due to misuse of the Service or Service Devices by Fitness Merchant personnel.
3. Training. ReserveKing will provide documentation for the use and setup of the Service by Fitness Merchant. If Fitness Merchant requests additional training, ReserveKing may provide such training subject to its availability and payment by Fitness Merchant of ReserveKing’ training fees.
5. Customer Information
1. Information Provided with Reservations. The following information, if known to ReserveKing, will be made available to Fitness Merchants for reservations made through the Service:
1. The User’s name and phone number;
2. The User’s email address;
3. Any information about the User’s preferences that the User has disclosed for the reservation, including, but not limited activity restrictions, or if the reservation is for a special occasion; and
4. Information related to a User’s past visits to the Fitness Merchant (or other Fitness Merchants sharing corporate ownership).
2. Information Stored with the Service. The Fitness Merchant may store information about Users on the Service in a similar manner as a ‘pen and paper’ reservation book. For example, information about the User’s fitness activity history, preferences, health restriction, or VIP status may be stored on the Service for reference for future visits by the User. ReserveKing reserves the right to use such information in an aggregate, non-personally identifiable form to assist ReserveKing in understanding general user trends and preferences for the Service. This information may be made available to the Fitness Merchant as well as part of ReserveKing’ ongoing efforts to improve the Service and provide additional information about Fitness Merchant’s clientele to Fitness Merchant. ReserveKing may also disclose such information to other Fitness Merchants in limited circumstances and without identifying Fitness Merchant during such disclosure, for example if the User has identified a health restriction or if the User is a VIP.
3. Personal Data. In addition to the Parties’ other obligations of confidentiality under these Terms, the Parties will comply with (i) ReserveKing’ privacy policy in effect at the time the Parties receive User information and all Privacy Laws (as defined below) that apply to User data that comes in the possession of the Parties in connection with these Terms, and will ensure that all Parties, or Party’s affiliates’, personnel that come in the possession of such User data will handle it in accordance with all such Privacy Laws at all times. “Privacy Law” means any law, regulation or other governmental or administrative order, in any jurisdiction relevant to these Terms, and related to the protection, privacy, and security of personal information of natural persons, including and any federal, state, or foreign laws and regulations.
4. Use of User Information. Unless prior written approval is received from ReserveKing, Fitness Merchant will not: (a) disclose any information that can be used to uniquely identify a User including without limitation names, phone numbers, physical addresses, email addresses, and credit card information (“Personal Information”) obtained from the Service to unaffiliated third-parties; or (b) use Personal Information of Users for any purpose other than (i) as needed to fulfill and process the User’s reservation; or (ii) add the User to the Fitness Merchant’s guest database (if applicable). If Fitness Merchant discloses Personal Information to third-parties under shared corporate ownership, Fitness Merchant will ensure that such third-parties are aware of by the Personal Information use restrictions and confidentiality obligations of these Terms. Fitness Merchant may not use User Information for direct marketing unless the User has expressly opted-in to receive such marketing communications from Fitness Merchant. For avoidance of doubt, the limitation in the preceding sentence will not apply to any Personal Information obtained by Fitness Merchant through other means not involving the Service, including but not limited to a User’s opt-in to Fitness Merchant rewards programs operated separately from the Service, or Personal Information collected during the User’s visit at the Fitness Merchant.
6. Fees and Taxes
1. Subscription Fees.  ReserveKing receives 20% per Reservation transaction (“Service Fees”), in accordance ReserveKing’ current pricing terms, (“Pricing Terms”). All fees are net of any taxes that Fitness Merchant may be required to pay in its tax jurisdiction(s). Fitness Merchant is required to provide credit card information through its Fitness Merchant Account (“Provider Account”) to which payment will be received. ReserveKing reserves the right to change its Pricing Terms at its sole discretion, with such changes being effective upon 15 days after posting on the Site. This Section will in no way limit any other remedies available to ReserveKing under applicable laws.
1. Taxes. Fitness Merchant will be responsible for the payment of all taxes, excises, payroll deductions, fees, fines, penalties, or other payments required by federal, state, or municipal law, ordinance, or regulation in relation to Fitness Merchant's performance of its obligations under these Terms. Fitness Merchant shall collect and pay promptly and before delinquency all taxes imposed under current or subsequent law upon sales of taxable goods or services in performance of these Terms.
2. Currency. All payments, prices, and other amounts relevant to these Terms are in U.S. Dollars.
7. Intellectual Property
1. Ownership of Service and Site. ReserveKing will retain and own all intellectual property rights to the Service, including any modifications or improvements to the Service.
2. Limited License to Fitness Merchant Materials. Fitness Merchant grants to ReserveKing a nonexclusive, royalty-free, worldwide license, to use, sell, offer for sale, copy, import, display, reproduce, perform, distribute, and display, in any medium now known or hereafter developed, the (i) advertisements, messages, notifications, data, information, text, graphics, links, Fitness Merchant’s logo(s) and business name and (ii) all related material and metadata submitted by Fitness Merchant (collectively the “Fitness Merchant Materials”) to ReserveKing solely for use in ReserveKing’ promotions and advertising related to the Services provided hereunder and to enable ReserveKing to process any Fitness Merchant Materials provided to ReserveKing for use on the Service. Fitness Merchant retains all right, title, and interest in Fitness Merchant Materials.
3. License to ReserveKing Marks. Fitness Merchant may market and promote its business or operation through use of the ReserveKing name or logo using advertising that has been reviewed and approved in advance by ReserveKing and in compliance with ReserveKing Trademark Usage Guidelines. However, Fitness Merchant will not advertise any connection with ReserveKing, nor use ReserveKing’ name, symbols, or other identifying marks or property nor make any representation, either express or implied, as to ReserveKing' promotion or endorsement of Fitness Merchant or Fitness Merchant's business, without prior written approval by ReserveKing. In any event, Fitness Merchant agrees that it will not include the ReserveKing logo in any advertisement, or in close proximity to any advertisement, for any illegal products or services.
4. Reservation of Rights. Except for the licenses granted in Sections 7(b) and 7(c), neither Party intends to grant, or actually grants any license, covenant not to sue, or any other immunity or right in connection with these Terms under any intellectual property rights of that Party, whether by implication, statute, inducement, estoppel or otherwise, and each Party hereby reserves all of its rights other than the rights explicitly granted in these Terms.
8. Restrictions on Use of the Service
1. Prohibited Actions. As a conditions of Fitness Merchant’s use of the Service, Fitness Merchant represents and warrants that it will not engage in, nor allow any third-party under Fitness Merchant’s control to engage in, any activity related to the Service that is unlawful or prohibited, including, but not limited to: (a) use of the Service to transmit or otherwise distribute any Advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by ReserveKing; (b) interfering or attempting to interfere with the proper working of the Service or prevent others from using the Service; (c) using the Service for any fraudulent or unlawful purpose (d) violating intellectual property rights; (e) accessing, tampering, or gaining access to any part of the Service that you are not authorized to access, including information for other Fitness Merchant Accounts on the Service; (f) removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of the Service; or (g) decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or underlying ideas or algorithms of the Service or of ReserveKing software. Violation of any of the foregoing may result in immediate termination of these Terms, among other available remedies, at ReserveKing’ sole discretion, and may subject Fitness Merchant to state and federal penalties and other legal consequences. ReserveKing reserves the right, but will have no obligation, to review Fitness Merchant’s use of the Service, including in relation to user complaints or disputes, in order to determine whether a violation of these Terms has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
2. Compliance with Laws. Fitness Merchant agrees that it will use the Service in compliance with all applicable local, state, national and international laws, rules, and regulations.
9. Term and Termination
1. Term. The term of these Terms of Service will begin on the date Fitness Merchant registers for a Fitness Merchant Account on the Site and continue until terminated.
2. Termination by ReserveKing. ReserveKing may terminate these Terms at any time, for any or no reason, by providing notice to the other Party.
3. Termination by Fitness Merchant. Fitness Merchant may terminate these Terms at any time, for any or no reason, by providing written notice to ReserveKing on or before the 15th day of the month in order for the Terms to terminate at the end of that month. If Fitness Merchant provides written notice of termination after the 15th day of the month, then the Terms will terminate at the end of the following month.
4. Effect of Termination. Notwithstanding anything to the contrary, in the event of any termination, Fitness Merchant will remain liable for any amount due under these Terms through the effective date of termination, and any amount that may later become due as a result of a chargeback under section 2(c)(ii), and such obligation to pay will survive any termination of these Terms. Upon termination, any licenses provided under these Terms will terminate and each Party will immediately remove and cease any use of the icons or other trademarks or logos belonging to the other.
10. Representations and Warranties
1. ReserveKing Warranties. ReserveKing represents and warrants to Fitness Merchant that: (i) ReserveKing has the right to enter into these Terms and to grant the rights and licenses granted to Fitness Merchant under these Terms; (ii) these Terms are a valid and binding obligation of ReserveKing; and (c) it has obtained and will maintain throughout the term of these Terms all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
2. Fitness Merchant Warranties. Fitness Merchant represents and warrants to ReserveKing that: (i) Fitness Merchant has the right to enter into these Terms and to grant the rights and licenses granted to ReserveKing under these Terms; (ii) these Terms are a valid and binding obligation of Fitness Merchant; and (c) it has obtained and will maintain throughout the term of these Terms all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations. Further, Fitness Merchant hereby represents and warrants to ReserveKing that (i) it will remain fully responsible for all access to and use of the Service and the Fitness Merchant Account through Fitness Merchant’s login name and password, including access to any features the use of which results in monetary charges to Fitness Merchant, whether or not Fitness Merchant has knowledge of or authorizes such access and use; (ii) it will not share or provide access to Fitness Merchant’s login name and password to any third-parties, and will use best efforts to protect the secrecy of Fitness Merchant’s login name and password; (iii) it has the right to grant to ReserveKing the rights granted herein; and (iv) it has provided and will continue to provide ReserveKing with accurate and complete account and other information, and will inform ReserveKing in writing of any changes or updates to such information during the term of these Terms.
11. Indemnification. Fitness Merchant will defend, indemnify and hold harmless ReserveKing and ReserveKing’ affiliated and related entities, and all of their agents, officers, directors and employees, from and against any and all claims, actions, losses, damages, liabilities, costs and expenses (including but not limited to attorney fees and costs)(collectively a “Third-Party Claim” arising out of or in connection with (i) any breach or alleged breach by Fitness Merchant of these Terms or of the representations and warranties made by Fitness Merchant in these Terms, and (ii) Fitness Merchant and Fitness Merchant’s employees and agents use of the Service and any information obtained through the Service. ReserveKing’ right to indemnification is conditioned upon the following: (1) reasonably prompt written notice to the Fitness Merchant of any Third-Party Claim for which indemnification is sought, provided that failure by ReserveKing to provide such notice will not release Fitness Merchant of its indemnity obligations hereunder, unless Fitness Merchant is materially prejudiced by ReserveKing’ failure to give such prompt notice; (2) providing control of the investigation, preparation, defense and settlement thereof to Fitness Merchant; and (3) providing reasonable cooperation at Fitness Merchant’s request and expense, in the defense of the Third-Party Claim. ReserveKing will have the right to participate in the defense of a Third-Party Claim with counsel of ReserveKing’ choice at ReserveKing’ expense. Fitness Merchant will not, without the express written consent of ReserveKing, settle or compromise any Third-Party Claim, or consent to the entry of any judgment that imposes any liability or obligation upon ReserveKing or admits and wrongdoing on the part of ReserveKing.
12. Confidentiality.
1. Confidential Information. “Confidential Information” means any information disclosed by either Party to the other Party under these Terms which relates to Users or to the financial terms or other confidential aspects of the relationship between the Parties under these Terms, and which is identified at the time of initial disclosure as confidential or should reasonably be considered confidential due to its nature and content. Confidential Information excludes information that: (a) through no unauthorized act or failure to act of the receiving Party, is or becomes generally known in the public domain; (b) is or was made known to the receiving Party from a source other than the disclosing Party and that was not under any obligation of confidentiality towards the disclosing Party; or (c) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
2. Confidentiality Obligation. The receiving Party will not use or disclose the Confidential Information of the other Party for any purpose except to the extent necessary to perform its obligations under these Terms and to exercise its respective rights and licenses under these Terms, provided, however, that each Party may disclose the terms and conditions of these Terms (i) in confidence to its external auditors, attorneys and advisors; (ii) as required by law, with prior notice to the disclosing party and with confidential treatment or other or other confidentiality protection to the extent available; (iii) as required or advisable in connection with the requirements of a public offering, securities filing, securities exchange rules or other applicable securities laws or regulations; (iv) to the competent courts or arbitration bodies in connection with the enforcement or defense of its rights hereunder under confidentiality protection to the extent available; and (v) to the legal or financial representatives of a third-party conducting a due diligence investigation in connection with a financing or the acquisition or disposition of a business or assets relating to these Terms, provided that such disclosure is made pursuant to a confidentiality obligations at least as protective as these Terms. Each Party will take the same measures to protect the Confidential Information of the other Party as it takes with respect to its own Confidential Information of like or similar importance, but in no event less than a reasonable degree of care given the sensitivity and strategic value of such Confidential Information.
3. Mandatory Disclosures. Nothing in these Terms will prevent the receiving Party from disclosing Confidential Information to the extent the receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the receiving Party will (a) assert the confidential nature of the Confidential Information to the agency; (b) immediately notify the disclosing Party in writing of the agency’s order or request to disclose; and (c) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
13. Warranty Disclaimer and Limitation of Liability
1. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND ANY MATERIALS PROVIDED BY RESERVEKING IN ACCORDANCE WITH THESE TERMS (INCLUDING ALL CONTENT, SOFTWARE, MATERIALS AND INFORMATION) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND RESERVEKING DISCLAIMS ALL OTHER EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE OR ANY MATERIALS PROVIDED BY RESERVEKING (1) WILL MEET THE REQUIREMENTS OF THE OTHER PARTY, OR (2) WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. RESERVEKING FURTHER DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE AND ANY MATERIALS PROVIDED BY RESERVEKING INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
2. LIABILITY LIMITATION. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL RESERVEKING, ITS AFFILIATES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF RESERVEKING OR RESERVEKING’ AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. WITHOUT LIMITING THE FOREGOING, RESERVEKING AND ITS AFFILIATES WILL NOT BE LIABLE TO FITNESS MERCHANT FOR ANY CHANGES WHICH RESERVEKING MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICES); (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH FITNESS MERCHANT’S USE OF THE SERVICES; (C) FITNESS MERCHANT’S FAILURE TO PROVIDE RESERVEKING WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (D) ANY LIABILITY RESULTING FROM FITNESS MERCHANT’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; OR (E) FITNESS MERCHANT’S FAILURE TO ACCESS THE SERVICES DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY FITNESS MERCHANT. EXCEPT FOR AMOUNTS EXPRESSLY DUE AND OWING HEREUNDER, IN NO EVENT WILL RESERVEKING AND ITS AFFILIATES’ TOTAL LIABILITY TO FITNESS MERCHANT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY RESERVEKING FROM FITNESS MERCHANT DURING THE ONE YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO THIS CLAIM.
3. Timing. Fitness Merchant will make any claim against ReserveKing in connection with these Terms within 6 months of the respective cause of action arising, otherwise the claim will be deemed waived by Fitness Merchant.
14. General
1. Governing Law and Arbitration.
1. Any claim, controversy, cause of action or dispute that might arise between Fitness Merchant and ReserveKing ("Claim") will be exclusively governed by laws of the United States of America and the District of Columbia consistent with the Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction. Fitness Merchant agrees that any subpoena, third-party discovery request, or other third-party process directed to ReserveKing must issue from, or be domesticated by, the state or federal courts located within the District of Columbia.
2. All Claims must be exclusively and finally resolved and settled by final and binding arbitration administered by and in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single arbitrator who is a member of the AAA. Arbitrations will be held in the District of Columbia, but the Parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected on appeal to a court of competent jurisdiction for such errors. The arbitrator’s ruling will otherwise be final and binding on all parties, and may be entered in any court of competent jurisdiction. NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, FITNESS MERCHANT AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN THE DISTRICT OF COLUMBIA.
3. FITNESS MERCHANT AND RESERVEKING AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH FITNESS MERCHANT AND RESERVEKING AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (iii), AND THIS SUBSECTION (iii) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
2. Partial Invalidity. If any provision in these Terms is found or be held to be invalid or unenforceable in any jurisdiction in which these Terms are being performed, then the meaning of that provision will be construed, to the extent feasible, to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of these Terms, which will remain in full force and effect. In such event, the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into these Terms.
3. Independent Contractors. The relationship of ReserveKing and Fitness Merchant is one of independent contractors, and nothing contained in these Terms will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Fitness Merchant to create or assume any obligation on behalf of ReserveKing for any purpose whatsoever. All financial obligations associated with Fitness Merchant’s business are the sole responsibility of Fitness Merchant. Fitness Merchant will be solely responsible for, and will indemnify and hold ReserveKing free and harmless from, any and all claims, damages, or lawsuits (including ReserveKing’ attorneys’ fees) arising out of the acts of Fitness Merchant, its employees, or its agents.
4. Modification and Waiver. ReserveKing may modify these Terms from time to time. ReserveKing will provide notice of any material modifications to the Terms via an email to Fitness Merchant at least 30 days in advance of the modification taking effect. Fitness Merchant’s continued use of the Services after the effective date of the modification constitutes acceptance of the modified terms. No failure or delay by either Party in exercising any right, power, or remedy under these Terms, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
5. Assignment. These Terms may not be assigned by Fitness Merchant without the prior consent ReserveKing, which will not be unreasonably withheld or delayed, except that Fitness Merchant may assign these Terms to a successor in connection with a merger, consolidation reorganization, reincorporation, or sale of all or substantially all of such Party’s business related to these Terms, provided that such successor agrees in writing to assume and be bound by all the provisions of the Terms. ReserveKing may assign or transfer these Terms for any reason. Any purported transfer, assignment, or delegation without such prior written consent will be null and void. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s successors and permitted assigns.
6. Notices. All notices, demands or consents required or permitted under these Terms will be (i) by email, provided an authorized representative of the other Party confirms receipt of the respective notice, demand or consent, or (ii) in writing and personally delivered or sent by telecopy, telegram or registered or certified mail, return receipt requested, or by a reputable overnight carrier to the address designated by the other Party and will be deemed to have been served when delivered, or if delivery is not accomplished by some fault of the addressee, when tendered. If to ReserveKing, such papers must be sent to: legal@reserveking.com. The communications between Fitness Merchant and ReserveKing may employ electronic means, such as email or notifications provided by ReserveKing on the Fitness Merchant Website. For contractual purposes, Fitness Merchant (i) consents to receive communications from ReserveKing in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that ReserveKing provides electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect Fitness Merchant’s statutory rights.
7. Force Majeure. Except for Fitness Merchant’s obligations to pay ReserveKing hereunder, neither Party will be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, epidemics, earthquakes, strikes, civil disturbances, or similar causes.
8. Entire Agreement. These Terms and any additional guidelines linked to within these Terms constitute the final, complete, and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement or understandings, whether oral or written with respect to the subject matter hereof.