CHANGES TO THE TERMS
These Terms may change as we continue to evolve our business, as well as the Digital Properties or any portion thereof. If we change these Terms, we will post the revised document here and such changes will be effective immediately upon that posting. Your continued use of the Digital Properties constitutes your acceptance of such changes and agreement to be bound by the modified Terms, and so we recommend that you review these Terms periodically when accessing or using the Digital Properties.
These terms were last updated: May 3, 2017
ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
Informal Dispute Resolution
Our goal is to do our best to ensure that every experience with Blink Fitness will exceed your expectations. If that doesn’t happen, we hope you will give us the opportunity to try to address any problem or concern. To do so, please contact us as described in the “How to Contact Blink Fitness” section below. When contacting us, we ask that you include your name, address, phone number and email address, and a description of your problem or concern and any specific relief you seek.
By using the Digital Properties, you and Blink Fitness agree to submit any and all Disputes (as defined below) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). Arbitration shall be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), www.adr.org. If you initiate arbitration, you shall have the choice as between these two arbitration forums; if Blink Fitness initiates arbitration, it shall have the choice as between these two arbitration forums.
WE EACH AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
Class Action Waiver
By using the Digital Properties, you agree that the arbitration of any Dispute (as defined below) shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving Blink Fitness or any other person. You further agree that you, and asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against Blink Fitness. We and you agree that the arbitrator of any Dispute between us may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action).
If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court. Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Definition of Dispute
Except as described below, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and Blink Fitness regarding any aspect of your relationship with Blink Fitness, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, and includes the validity, enforceability or scope of these Terms, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.
However, “Disputes” SHALL NOT include claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, or any claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.
How Will the Arbitration Work?
Either you or Blink Fitness may initiate arbitration proceedings. The arbitration will be conducted before a single arbitrator. The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration.
If you or Blink Fitness initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:
- For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.
- Which particular rules apply in AAA arbitration will depend on how much money is at issue. For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, Blink Fitness will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules.
Where Will the Arbitration Be Held?
You can bring the arbitration in either New York or in the state where you live if there is a JAMS or AAA in that state. In the event that Blink Fitness initiates an arbitration, it will only do so in the state where you live before either JAMS or AAA, unless there is no JAMS or AAA in your state, in which case Blink Fitness may initiate the arbitration in New York. As set forth in “Governing Law” section below, the arbitrator will apply New York law.
ACCESS TO THE DIGITAL PROPERTIES
You are solely responsible for any charges incurred in obtaining access to the Digital Properties, including without limitation charges from your Internet service provider and/or wireless carrier. While you may be able to purchase certain goods or services through the Digital Properties, the Digital Properties themselves are currently provided for free. Blink Fitness reserves the right to change the nature of this relationship at any time, without prior notice or liability to you. In addition, access to certain Digital Properties or portions thereof may be limited to Blink Fitness members, as described in the “Your Account” section below.
Blink Fitness has no obligation to maintain the Digital Properties, in whole or in part, nor does it have any obligation to provide you with any related maintenance or support services. Blink Fitness eserves the right to render the Digital Properties, in whole or in part, temporarily or permanently unavailable or to otherwise terminate, suspend access to, replace, or modify the Digital Properties or any portion thereof, at any time and for any or no reason, without prior notice or liability to you. Any Content or other information made available on or through the Digital Properties is also subject to change at any time and without prior notice or liability to you.
Some portions of the Digital Properties may invite or require you to create an account and associated log-in credentials, and you may not be able to access certain Content or features, functionalities, or services of the Digital Properties, without creating and logging into such an account. In some instances, the right to create an account may be limited to current members of Blink Fitness in good standing. You agree to provide true, accurate and current information when creating an account, and you are responsible for updating your account information as needed to ensure it remains current. You are responsible for maintaining the confidentiality of your log-in credentials, and you hereby acknowledge and agree that you are fully responsible and liable for all usage and activities that occurs under your account, whether authorized by you or not. You agree to notify Blink Fitness immediately if you know of or suspect any unauthorized use of your account or password or any other breach of security related to your account. Notwithstanding anything to the contrary in these Terms, Blink Fitness reserves the right to deny the creation of, suspend access to or terminate any account(s), or to remove or modify Content, features, functionalities and/or services available to account holders, at any time in its sole discretion and without prior notice or liability to you.
USING THE DIGITAL PROPERTIES
Subject to your compliance with these Terms, Blink Fitness gives you the limited, non-exclusive, non-transferable, and revocable right to access and use the Digital Properties solely for your personal and non-commercial use. However, Blink Fitness does not give you any right to, and you hereby agree not to:
- Use the Digital Properties or any portion thereof for any commercial use or for the benefit of any other person or entity, including without limitation by selling, renting, leasing, assigning, transferring, hosting, or otherwise commercially exploiting any Digital Property or any portion thereof.
- Copy, stream, reproduce, duplicate, archive, store (other than standard browser caching), download, publish, modify, make derivative works of, reverse engineer, translate, or distribute any Digital Property or portion thereof by any means, other than as expressly allowed by these Terms or as otherwise clearly contemplated by the features and functionalities of the Digital Properties – for example, by sharing Content through a social media “share” feature or downloading and using the Blink Fitness mobile app. You may also print or save to your computer, phone or personal device a reasonable number of pages or Content from the Digital Properties, but solely for your own personal, internal and non-commercial purposes.
- Remove, alter, bypass, avoid or circumvent any copyright, trademark or other proprietary notice, digital rights management mechanisms or other content protection measures included in or associated with the Digital Properties or any Content. Similarly, you may not modify, remove, or otherwise interfere with any embedded player that may made available in connection with certain Content.
- Use any software robots, spiders, crawlers, or similar data mining, gathering or extraction tools or methods, whether automated, programmed or manual, including without limitation to access, acquire, copy, monitor or make submissions through any portion of the Digital Properties.
- Knowingly or intentionally take any other action that may impose an unreasonable burden or load on the Digital Properties or its servers and infrastructure.
Any unauthorized use by you, or otherwise under your account or on your computer or personal device, of the Digital Properties any portion thereof will immediately terminate the limited rights granted to you under these Terms, and such termination will be without prejudice to any other right or remedy Blink Fitness may have under applicable law or in equity.
As between you and Blink Fitness, Blink Fitness owns the Digital Properties and all content displayed or made available on or through, or otherwise included in, the Digital Properties, including without limitation all text, video clips, audio clips, graphics, trademarks, service marks, trade names, logos, icons, images, data, information, code and software, regardless of whether registered or unregistered, and any combinations and compilations thereof (collectively, “Content”). The Digital Properties and Content, including the selection, coordination, arrangement and enhancement of Content and the design, layout and “look and feel” of each Digital Property, constitute valuable intellectual property of Blink Fitness, and are protected by applicable copyright, trademark and other applicable intellectual property rights and laws.
The Digital Properties and Content are licensed, not sold, to you, and your limited rights to access and use the Digital Properties and Content are conditioned upon your compliance with these Terms. No act of downloading or copying from, or otherwise using, the Digital Properties, even with Blink Fitness’s permission, will transfer any title, interest or right in or to any Digital Property or Content to you. Blink Fitness hereby expressly reserves all rights not expressly granted in and to the Digital Properties and Content.
COMMENTS; NO UNSOLICITED IDEAS
We welcome your feedback regarding the Digital Properties, as well as our gym locations, services, products and other offerings. However, please understand that any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, "Comments") posted on, submitted through, or otherwise sent to Blink Fitness as a result of, the Digital Properties shall become and remain the exclusive property of Blink Fitness. Your posting, submission or sending of any such Comments shall constitute an assignment to Blink Fitness of all worldwide right, title and interest, including all intellectual property rights, in and to the Comments, and Blink Fitness will be entitled to use, reproduce, disclose, publish, distribute and otherwise exploit any Comments for any purpose whatsoever, without restriction or liability and without notifying or compensating you in any way, and you hereby agree to waive any and claims against Blink Fitness in connection with the foregoing.
All Comments will be treated as non-confidential, and therefore you agree not to post, submit or send to Blink Fitness, on an unsolicited basis, any ideas, confidential information, proprietary information or other Comments that you do not wish to assign to Blink Fitness, including without limitation ideas for new or improved products, services, technologies, marketing, advertisements promotions or other services, products or offerings and any original creative materials such as stories, videos, computer code, images or artwork (all of the foregoing, collectively, “Unsolicited Ideas”). Please understand that while we sincerely appreciate the enthusiasm and interest in our company and brand, it is the long-standing policy of Blink Fitness to not accept or consider any Unsolicited Ideas. We employ a talented staff of employees, and have existing relationships with outside consultants or vendors, who may be working on the same or similar ideas. The intent of this policy against the acceptance consideration of Unsolicited Ideas is to avoid the possibility of future misunderstandings when projects developed by our staff, consultants or vendors might seem to others to be similar to your own work.
If, despite this policy, you nonetheless chose to post, submit or otherwise send to Blink Fitness any Unsolicited Idea, by doing so you acknowledging and agreeing that: (1) you are not posting, submitting or sending any confidential or proprietary information; (2) Blink Fitness has no obligation to review or use the Unsolicited Idea or to keep it confidential; and (3) Blink Fitness will consider the Unsolicited Idea as a Comment assigned to and owned by Blink Fitness, which it may use, reproduce, disclose, publish, distribute or otherwise exploit for any purpose whatsoever, without restriction or liability and without notifying or compensating you, and you hereby agree to waive any and claims against Blink Fitness in connection with the foregoing.
THIRD PARTY SITES
Blink Fitness is not a health care or medical provider. The Digital Properties and the features, functionalities, services and Content made available therein, including without limitation any advice, information, workouts, exercises, regimens, nutritional plans, recipes or other materials (collectively, the “Fitness Features”), are provided for general informational purposes only, and do not constitute medical advice. The Fitness Features are not intended to be relied upon for determining the state of your health or in the diagnosis of any medical conditions and are not, and should not be used as, a substitute for a professional medical evaluation. We advise you to see your physician on a regular basis and to seek their advice prior to engaging in any fitness or nutrition regimen or if you have any questions or concerns regarding your health and fitness regimen or for the diagnosis of specific medical conditions.
Blink Fitness is not liable or responsible for any consequences of you having read, used or relied upon any Fitness Features. By using any Fitness Feature, you acknowledge and understand that it may involve or provide information regarding strength, flexibility, aerobic, cardio, meditation, regeneration or other exercises, all of which can be potentially hazardous activities. You should consult with your doctor prior to using any Fitness Feature. If you choose to use any Fitness Features, you should be in good health and have no disability, impairment, injury, disease or ailment preventing you from engaging in active or passive exercise or which would cause increased risk or injury or adverse health consequences as a result of using such Fitness Features, and you hereby assume all risks associated with using such Fitness Features. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS, OR DISCOMFORT, WHEN USING ANY FITNESS FEATURE, STOP AND CONSULT YOUR PHYSICIAN OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLINK FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE FITNESS FEATURES AND IS NOT RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON ANY SUCH FITNESS FEATURES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO RELY ON AND/OR USE ANY FITNESS FEATURE IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLINK FITNESS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF ANY FITNESS FEATURE.
While we endeavor to provide the best digital experience we can, including without limitation by offering accurate and current Content, we cannot and do not guarantee that the Digital Properties or any portion thereof will always be fully-functional, current or accurate. For up-to-date information on location hours, class schedule changes, contact information and any other information regarding any Blink Fitness gym, its operations, programs, and/or offerings, please contact the relevant Blink Fitness gym location or our corporate offices, as described in the “Contact Us” section below.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE DIGITAL PROPERTIES IS AT YOUR SOLE RISK, AND THAT THE DIGITAL PROPERTIES, AND ALL ASPECTS THEREOF, ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. BLINK FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION: (1) WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES THAT THE DIGITAL PROPERTIES WILL MEET YOUR REQUIREMENTS, OR OPERATE WITH THE DEVICES, HARDWARE OR SOFTWARE YOU USE; OR (3) WARRANTIES THAT YOUR ACCESS TO AND USE OF THE DIGITAL PROPERTIES WILL BE AVAILABLE, UNINTERRUPTED, CURRENT, OR FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR CODE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
LIMITATIONS OF LIABILITY
You agree that, to the maximum extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with the Digital Properties is to stop using and, where applicable, uninstall the Digital Properties.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL BLINK FITNESS, ITS PARENTS, SUBSIDIARIES OR OTHER AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SERVICE PROVIDERS, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “BLINK FITNESS PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY DEATH, PERSONAL INJURY, LOSS OF USE OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THE DIGITAL PROPERTIES, OR THESE TERMS.
IN ADDITION, IF AND TO THE EXTENT BLINK FITNESS IS LIABLE FOR ANY DIRECT DAMAGES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE DIGITAL PROPERTIES, OR THESE TERMS, THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF BLINK FITNESS FOR SUCH DIRECT DAMAGES WILL BE LIMITED TO TEN DOLLARS ($10.00 USD). Except for any liability of Blink Fitness under the forgoing paragraph, you acknowledge and agree that the other Blink Fitness Parties will have no liability to you for any direct damages arising out of the Digital Properties or these Terms.
You agree to defend, indemnify and hold the Blink Fitness Parties harmless from and against any claims, liabilities, losses, damages, costs and expenses (including without limitation reasonable attorneys' fees), arising out of or in connection with: (1) your access to and/or use of the Digital Properties or any portion thereof; (2) your Comments or Unsolicited Ideas; (3) your failure to comply with these Terms or with any applicable law, rule or regulation; (4) your infringement, misappropriation or violation of the Digital Properties or Content or of any third party’s intellectual property right; or (5) any activity occurring by or through your account, whether taken by you or another person accessing or using your account, with or without authorization.
Blink Fitness will use reasonable efforts to notify you of any claim, action or proceeding subject to the foregoing paragraph once it becomes aware of it, but any failure to provide you with notice shall not limit your indemnification obligations unless you can establish actual prejudice resulted from such failure. Blink Fitness reserves the right, at your expense, to assume the exclusive defense and control of any claim, action or proceeding for which you are required to provide indemnification, and you agree to cooperate with our defense of these claims. You may not settle any claims, actions or proceedings for which you are required to provide indemnification, without Blink Fitness’s prior written consent.
You may terminate these Terms at any time by ceasing to access and use the Digital Properties and, where applicable, uninstalling the Digital Properties. Please understand, however, if you subsequently decide to resume accessing and using any of the Digital Properties, you will again be bound by the then-current Terms. We may terminate these Terms, or otherwise terminate, suspend or restrict your access to and use of the Digital Properties, in whole or in part, at any time and without prior notice or liability to you, for any reason, including without limitation your failure to comply with any portion of these Terms.
However, even after these Terms have been terminated, the sections titled “Arbitration Agreement and Class Action Waiver,” “Intellectual Property,” “Comments; No Unsolicited Ideas,” “Privacy,” “Disclaimers,” “Limitations of Liability,” “Indemnification,” “Governing Law,” and “General” and any other provision which by its nature is intended to survive, will survive that termination.
These Terms, the Additional Terms below, and your access to and/or use of the Digital Properties, will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Except as provided above as to those Disputes you or Blink Fitness submit to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), all claims, disputes and matters arising hereunder shall be submitted exclusively to the jurisdiction of the federal and state courts of competent jurisdiction located in New York City, New York, and you and Blink Fitness each hereby irrevocably consent to the jurisdiction of such courts and waives all objections thereto.
Blink Fitness’s corporate offices are located at 386 Park Ave. S., 11th Floor, New York, NY 10016. If you have questions regarding these Terms, or our Digital Properties or our gyms, please contact us at this address or by emailing us at firstname.lastname@example.org. Your feedback is always welcome and appreciated.