Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of FitPal’s credit approval requirements, FitPal agrees to provide the web hosting, creative design and professional website design services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that FitPal generates an email message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew unless FitPal or Customer provides the other with written notice of non-renewal through the client area which is located at http://www.fitpalpro.com/clients/. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, semi-annuall or annually, as indicated on the Order, beginning on the Service Commencement Date. FitPal may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes FitPal to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise FitPal will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 7th day following invoice date, but in no event earlier than the first day of each billing cycle. Payments must be made in Canadian dollars. Customer is responsible for providing FitPal with changes to billing information (such as credit card expiration, change in billing address) at its option, FitPal may accrue charges to be made to a credit/debit card until such charges exceed $10.00. FitPal may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. FitPal may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay FitPal’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay FitPal’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases
FitPal may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
At FitPal’s request Customer shall remit to FitPal all HST or similar tax imposed on the provision of the services (but not in the nature of an income tax on FitPal); regardless of whether FitPal fails to collect the tax at the time the related services are provided.
FitPal does not mandate long-term contracts or commitments. Customer may cancel service at anytime on any billing cycle. As a result, FitPal does not offer any refunds on service plans, design fees, domain registrations or any other services not listed here. There are no refunds for monthly, semi-annual or annual payments.
At times when a Credit is issued to an account for any reason, this credit is non-refundable. Furthermore any positive credit balance on an account at the time of account termination is immediately forfeited.
(f) Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event FitPal terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for FitPal’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
All disputes and overcharges must be reported directly to the Company, in writing, within thirty (30) days. Any Customer that initiates a chargeback, reversal, retrieval request, or other dispute with their credit card issuing bank and/or PayPal (“Dispute”) will be immediately suspended or terminated pending investigation. The Customer agrees to pay a “Research Fee” of $35.00 CAD per dispute regardless of the actual validity of the charge.
Customer agrees to use the service in compliance with applicable law. Customer warrants that Customer holds valid licenses, degrees or any other means of validation in their respective professional fields.
5. Customer Information
Customer represents and warrants to FitPal that the information he, she or it has provided and will provide to FitPal for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to FitPal that he or she is at least 18 years of age. FitPal may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
Customer agrees to indemnify and hold harmless FitPal, FitPal’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorney fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s login information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
FitPal does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law, FitPal disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all services are provided on an “as-is” basis.
8. Limitation of Damages
Neither party shall be liable to the other for any lost profits, or any indirect, special, incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of fitpal and any of its employees, agents or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by customer for three months of service.
The Agreement may be terminated by FitPal prior to the expiration of the Initial Term or any Renewal Term without further notice if Customer is overdue on the payment of any amount due under the Agreement.
Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information
Customer agrees that FitPal may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that FitPal believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Changes to FitPal’s Network
Upgrades and other changes in FitPal’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. FitPal reserves the right to change its network in its commercially reasonable discretion, and FitPal shall not be liable for any resulting harm to Customer.
Notices to FitPal under the Agreement shall be given via electronic mail to the email address posted for customer support on http://www.fitpalpro.com/support/. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
13. Force Majeure
FitPal shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond FitPal’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
14. Changes to the Terms of Service
FitPal reserves the right to modify this Agreement, in whole or in part, from time-to-time. FitPal will provide you with notices of such a change by posting notice on your control panel. Unless FitPal is required to make a change in an emergency, any change will be effective thirty (30) days after it is posted. If such a change materially diminishes your ability to use the Services, you may terminate this Agreement. You are encouraged to review the content of this Agreement on a regular basis.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the province of Ontario, exclusive of its choice of law principles, and the laws of Canada, as applicable. Exclusive venue for all disputes arising out of or relating to the agreement shall be the provincial and federal courts in Toronto, Ontario and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
16. Refuse Service
FitPal reserves the right to refuse service to any active or in-active customers for any reason it deems necessary.
Last updated: December 14, 2015