CHANGES TO THE TERMS
These Terms may change as we continue to evolve our business, as well as the App 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 App 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 App.
These terms were last updated: August 8, 2018
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 “Contact Us” section below. When contacting us, we ask that you include your name and email address, and a description of your problem or concern and any specific relief you seek.
By using the App, 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 AND YOU EACH AGREE THAT, ANY AND ALL DISPUTES (AS, AND TO THE EXTENT, DEFINED BELOW), 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 App, you agree that the arbitration of any Dispute (as defined below) shall be conducted on an individual, not a class-wide or collective 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, will not be a class representative, class member, or otherwise participate in a class, representative, collective, 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 with respect to the scope of an arbitrator’s authority, jurisdiction, or the validity, legality, enforceability, unconscionability, or applicability of this Arbitration Agreement and Class Action Waiver shall be decided by the 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, including without limitation those alleging or based in contract, statute, regulation, ordinance, tort, 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. Notwithstanding the foregoing, any claim pursuant to the “Governing Law; Equitable Relief” section below shall be determined 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?
The arbitration will be held in New York City, New York, or the state and city of the Blink club you attended if JAMS or AAA arbitration services are available in that location. As set forth in “Governing Law” section below, the arbitrator will apply New York law.
ACCESS TO THE APP
The App is intended for use by adults age 18 or older who reside in the United States, or those adults outside of the United States who, by using the App, agree to use the App in accordance with United States laws, these Terms and our Privacy Statement available at Privacy Statement. If you choose to access the App from locations outside of the United States, you do so on your own initiative and at your own risk. By using or attempting to use the App, you are representing to Blink Fitness that you meet the foregoing eligibility requirements and have the legal capacity to enter into and be bound by these Terms.
You are solely responsible for any charges incurred in obtaining access to the App, including without limitation charges from your Internet service provider and/or wireless carrier. The App is currently provided for free; however, Blink Fitness reserves the right to change the nature of this relationship at any time, without notice or liability to you. In addition, access to the App or portions thereof may be limited to Blink Fitness members, as described in the “Your Account” section below.
We endeavor to be accurate when describing and displaying products and services on the App. However, items may occasionally be mispriced, described inaccurately, or unavailable (for example, due to delays with respect to updating the App). Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. The particular technical specifications and settings of your device and its display could affect the accuracy of its display of the colors of products offered on the App. As a result, and as set forth in the “General Disclaimers” section below, Blink Fitness does not and cannot guarantee the accuracy, reliability, currency or completeness of the information on the App, including prices, product images, descriptions, specifications, and indications of availability. We reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time with or without notice.
Some portions of the App 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 App, 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 notice or liability to you.
USING THE APP
Subject to your compliance with these Terms, Blink Fitness gives you a personal, limited, non-exclusive, non-transferable, and revocable right to access and use the App 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 App, 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 App 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 App 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 App – for example, by sharing Content through a social media “share” feature or downloading and using the App. You may also print or save to your computer, phone or personal device a reasonable number of pages or Content from the App, but solely for your own personal, internal and non-commercial purposes.
- "Frame" or use the App or any Content in any way that might confuse, misdirect, or misrepresent their source, or sponsorship or affiliation thereof or therewith.
- 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 App 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 App.
- Knowingly or intentionally take any other action that may impose an unreasonable burden or load on the App, Blink Fitness, or its servers and infrastructure or that of its service providers.
- Take any action in connection with your use of the App or Content which violates any applicable local, state, national or international law, rule, regulation or order of any court in conjunction with your use thereof.
- Otherwise use the App or Content for any unlawful or abusive purposes, including, but not limited to, the violation of any intellectual property rights (whether belonging to Blink Fitness or third parties) or the posting or distribution of any "harmful" or "malicious" code or programming devices (e.g., viruses, malware, ransomware, corrupted files, key locks, back doors, trap doors, timers or other disabling devices) or any other similar software or programs that may adversely affect the operation of the App or any other software, hardware, network or other technology (collectively, “Malicious Code”).
FINALLY, DO NOT USE THE APP WHILE OPERATING A VEHICLE OF ANY KIND OR WALKING/RUNNING. SUCH USE MAY DISTRACT YOU, MAY CREATE A HAZARD FOR YOU OR OTHERS AND MAY BE ILLEGAL IN YOUR JURISDICTION.
Any unauthorized use by you, or otherwise under your account or on your computer or personal device, of the App or 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, or has all applicable rights to, the App and all content displayed or made available on or through, or otherwise included in, the App, 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 App and Content, including the selection, coordination, arrangement and enhancement of Content and the design, layout and “look and feel” of each App, constitute valuable intellectual property of Blink Fitness and its licensors, and are protected by applicable copyright, trademark and other applicable intellectual property rights and laws.
The App and Content are licensed, not sold, to you, and your limited rights to access and use the App and Content are conditioned upon your compliance with these Terms. Except as expressly set forth herein, nothing in these Terms or otherwise will transfer any title, interest or right in or to any App or Content to you. Blink Fitness hereby expressly reserves all rights not expressly granted in and to the App and Content.
COMMENTS; NO UNSOLICITED IDEAS
We welcome your feedback regarding the App, as well as our Club 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 App 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, except as provided in our Privacy Statement with respect to applicable personal information contained in the Comments, 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 all 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 or 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 choose to post, submit or otherwise send to Blink Fitness any Unsolicited Idea, by doing so you are 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 as described above, and you hereby agree to waive any and claims against Blink Fitness in connection with the foregoing.
Please visit our Privacy Statement so that you may understand how we collect, share and use information gathered from or through our access to and/or use of the App. By using the App, you acknowledge that you have read and understand the terms of our Privacy Statement and how we collect, use and disclose personal information, as described therein.
THIRD PARTY SITES
For your convenience, the App may contain links to websites, downloadable apps, or other digital properties, products or services of other persons or entities, including without limitation social media networks (collectively, “Third-Party Sites”). When you click on one of these links, you are leaving the App and accessing a Third-Party Site over which Blink Fitness has no control. Including a link to a Third-Party Site does not constitute or imply endorsement by, or affiliation with, Blink Fitness of that Third-Party Site, its operator or its contents, services and/or offerings. Your rights and obligations when accessing and using these Third-Party Sites are not governed by these Terms (or our Privacy Statement) and will instead be governed by the terms and policies of those Third-Party Sites, and we encourage you to carefully read those terms and policies of these Third-Party Sites, as their practices may differ from ours.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLINK FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY SITES AND HAS NO RESPONSIBILITY FOR SUCH THIRD-PARTY SITES OR THE CONTENTS, FEATURES OR OPERATION OF SUCH THIRD-PARTY SITES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO ACCESS AND USE ANY THIRD-PARTY SITE 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 ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF OR RELIANCE ON ANY THIRD-PARTY SITES.
Blink Fitness is not a health care or medical provider. The App 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 or the provision thereof. 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.
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 APPLICABLE LAW, BLINK FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE FITNESS FEATURES AND IS NOT RESPONSIBLE OR LIABLE 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, we cannot and do not guarantee that the App, Content, 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 hyperlink.
YOU UNDERSTAND AND ACKNOWLEDGE THAT BLINK FITNESS HAS NO OBLIGATION TO MAINTAIN THE APP, IN WHOLE OR IN PART, NOR DOES IT HAVE ANY OBLIGATION TO PROVIDE YOU WITH ANY RELATED MAINTENANCE OR SUPPORT SERVICES. BLINK FITNESS RESERVES THE RIGHT TO RENDER THE APP, IN WHOLE OR IN PART, TEMPORARILY OR PERMANENTLY UNAVAILABLE OR TO OTHERWISE TERMINATE, SUSPEND ACCESS TO, REPLACE, OR MODIFY THE APP OR ANY PORTION THEREOF, AT ANY TIME AND FOR ANY OR NO REASON, WITH OR WITHOUT PRIOR NOTICE OR LIABILITY TO YOU. ANY CONTENT OR OTHER INFORMATION MADE AVAILABLE ON OR THROUGH THE APP IS ALSO SUBJECT TO CHANGE AT ANY TIME AND WITHOUT NOTICE OR LIABILITY TO YOU.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APP IS AT YOUR SOLE RISK, AND THAT THE APP, 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 APP WILL MEET YOUR REQUIREMENTS, OR OPERATE WITH THE DEVICES, HARDWARE OR SOFTWARE YOU USE; (3) WARRANTIES THAT YOUR ACCESS TO AND USE OF THE APP AND CONTENT WILL BE AVAILABLE, UNINTERRUPTED, CURRENT, OR FREE FROM INACCURACIES, ERRORS, OR MALICIOUS CODE; (4) WARRANTIES THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (5) ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
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 App is to stop using and, where applicable, uninstall the App.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE 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 LOSS OF USE, LOST DATA, OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THE APP, 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 APP, OR THESE TERMS, THEN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE 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 App or these Terms.
To the maximum extent permitted by applicable law, 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), including any incurred in enforcing this provision, arising out of or in connection with: (1) your access to and/or use of the App 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 App, 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 App and, where applicable, uninstalling the App. Please understand, however, if you subsequently decide to resume accessing and using the App, 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 App, in whole or in part, at any time and without 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,” “General,” “Additional Terms for Apps,” and any other provision which by its nature is intended to survive, will survive termination of these Terms.
MONITORING OF THE APP
We expressly reserve the right to monitor any and all use of the App and Content, but have absolutely no obligation to do so, nor to continue to do so at any point. We also reserve the right to investigate and take legal action against any against any illegal and/or unauthorized use of the App and/or Content.
GOVERNING LAW; EQUITABLE RELIEF
These Terms, and your access to and/or use of the App, 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 “Arbitration Agreement and Class Action Waiver” provision of these Terms, 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 County, New York, and you and Blink Fitness each hereby irrevocably consent to the jurisdiction of such courts and waive all objections thereto.
You acknowledge and agree that these Terms are reasonable and necessary, and that your actual or threatened breach of these Terms would give rise to irreparable harm to Blink Fitness for which monetary damages would not constitute an adequate remedy and, in addition to any and all other rights that may be available in respect of such breach or threatened breach, will entitle Blink Fitness to immediate injunctive and other equitable relief without any requirement to post bond.
These Terms and any other terms and conditions that may be made available with respect to the App or portions thereof, constitute the complete and exclusive agreement between you and Blink Fitness concerning your access to and use of the App, and supersede and govern over all prior proposals, agreement or other communications. Nothing in these Terms shall be construed as creating any agency, partnership or other form of joint enterprise between you and Blink Fitness. Our failure to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision or right, nor will any waiver of any breach of these Terms act as a waiver of any other provision or a waiver of any future breaches. If any provision of these Terms is declared unenforceable or invalid by a court of competent jurisdiction, the provision will be enforced to the maximum extent permitted by law, and the other provisions of these Terms will remain unaffected and in full force and effect. If necessary, Blink Fitness will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent.
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, the App, or our gyms, please contact us at this address or click here. Your feedback is always welcome and appreciated.
ADDITIONAL TERMS FOR APPS
The following terms (the “Additional Terms for Apps”) apply to the App. You acknowledge and agree that the availability of each App is dependent upon the third-party app store from which you download the App (the “App Store”). You acknowledge that these Terms are between you and Blink Fitness, and not with the applicable App Store. Each App Store may have its own terms and conditions to which you must agree before downloading an App from it, and the limited rights Blink Fitness grants you to use the App are conditioned upon your compliance with any and all terms and conditions of such App Store.
In addition, the following terms and conditions apply to the App that you download from any Apple App Store (an “iOS App”):
1. Acknowledgement: You and Blink Fitness each acknowledge that the Terms, including these Additional Terms for Apps, are between you and Blink Fitness, and not with Apple Inc. (“Apple”), and that, subject to any limitations set forth in these Terms, Blink Fitness, not Apple, is solely responsible for the iOS App and its contents. To the extent the Terms or an Additional Terms set forth herein provide for usage rules applicable to an iOS App that are less restrictive than or otherwise conflict with the Apple App Store Terms of Service, the more restrictive or conflicting provision in such Apple App Store Terms of Service will govern and apply.
2. Scope of License: The license granted to you under the Terms is limited to a non-transferable license to use the iOS App on any iPhone, iPad, Apple Watch or other Apple-branded iOS product or device that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such iOS App may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s “Family Sharing” or volume purchasing.
3. Maintenance and Support: To the extent any maintenance and support services are required under applicable law or expressly contemplated by these Terms, Blink Fitness, not Apple, is solely responsible for such services. You and Blink Fitness each acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.
4. Warranty: Blink Fitness, not Apple, is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed or limited under the Terms. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the iOS App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, to the extent not effectively disclaimed or limited under the Terms, will be Blink Fitness’s sole responsibility.
5. Product Claims: You and Blink Fitness each acknowledge that Blink Fitness, not Apple, is responsible for addressing any claims you or a third party may have relating to the iOS App or your possession and/or use of that iOS App, including, but not limited to: (1) product liability claims; (2) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. However, you acknowledge and agree that Blink Fitness’s responsibility for the foregoing claims is limited and disclaimed, to the maximum extent permitted by applicable law, as further described in these Terms.
6. Intellectual Property Rights: You and Blink Fitness each acknowledge that, in the event of any third party claim that the iOS App, or your possession and use of the iOS App, infringes that third party’s intellectual property rights, Blink Fitness, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, subject to any disclaimers and limitations set forth in, and your indemnification obligations under, the Terms.
7. Legal Compliance: You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Third Party Terms of Agreement: You agree to comply with applicable third party terms of agreement when using any iOS App, including without limitations agreements with wireless carriers or Internet service providers.
9. Third Party Beneficiary: You and Blink Fitness each acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.