ELITE LIFESTYLE APPLICATION TERMS & CONDITIONS OF SERVICE
Thank you for choosing ELITE AMENITY MANAGEMENT (“ELITE”). Please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations.
This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement or (b) the date you first access or use the ELITE APP.
1. GENERAL TERMS
- This Agreement is a binding legal agreement between you and ELITE POOL & FITNESS MANAGEMENT, INC., d/b/a ELITE AMENITY MANAGEMENT.
- The Services provided through the ELITE APP are only accessible smart phone, tablet, or other wireless device. Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the ELITE APP. You are solely responsible for checking with your mobile carrier to determine if the ELITE APP is available for your mobile device(s), what restrictions, if any, may be applicable to your use of the same, and how much they will cost you.
- We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement. If we make any material changes to the Agreement, we’ll also notify you within the ELITE APP or by sending you other electronic notification. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement.
- Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
- You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on ELITE APP, satisfy any legal requirement that such communications be in writing.
- The ELITE APP may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our users. Such Linked Sites are not under ELITE’s control, and ELITE is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
2. LIMITATIONS ON LIABILITY, WARRANTIES & DISPUTE RESOLUTION
- · To the maximum extent permitted by law, you agree to indemnify and hold ELITE, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against ELITE by any third party due to or arising out of or in connection with your use of the ELITE APP.
- · In no event will ELITE be liable to you for any direct, indirect, consequential, exemplary, incidental or punitive damages.
- All matters pertaining to the validity, construction and effects of this Agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles.
- Any claim or dispute arising out of or relating to this Agreement, shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having competent jurisdiction thereof.
- · The arbitration will be conducted in the City and State of New York. The arbitrators shall provide no findings of fact in granting the award. The arbitration award shall be final and may not be appealed or challenged in any jurisdiction except as provided by the rules of the American Arbitration Association or the Federal Arbitration Act.
- · Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER.
HEALTH WARNING AND LIABILITY DISCLAIMER
- YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE USING THE SERVICES OFFERED ON THE ELITE APP OR ANY OTHER EXERCISE PROGRAM. NOTHING STATED OR POSTED, OR CONTAINED IN THE MATERIALS PROVIDED THROUGH THE ELITE APP, IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE. YOUR USE OF THE ELITE APP IS AT YOUR OWN RISK.
- ELITE DOES NOT PROMISE THAT THE SERVICES OR FEATURES OF THE ELITE APP WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE ELITE APP AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ELITE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ELITE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE ELITE APP. The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
- ELITE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF USER CREDIT CARD HOLDER DATA CONTROLLED BY ELITE. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
- ELITE reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the ELITE APP or any portion thereof for any reason; (2) to modify or change the ELITE APP, or any portion thereof and any applicable policies or terms; and (3) to interrupt the operation of the ELITE APP or any portion thereof as necessary to perform routine or non-routine maintenance, error correction, or other changes.
- You are entirely responsible for maintaining the confidentiality of the information you hold for your account/ credentials with respect to the ELITE APP including your password, if applicable, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You agree to notify ELITE immediately of any unauthorized use of your account or password, or any other breach of security. ELITE cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
3. INTELLECTUAL PROPERTY RIGHTS
- · All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the ELITE APP is owned, controlled or licensed by or to ELITE, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
- · Subject to the terms and conditions herein, ELITE grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the ELITE APP. As a condition of your use of the ELITE APP, you warrant to ELITE that you will not use the same for any purpose that is unlawful or prohibited by these Terms. You may not use the ELITE APP in any manner which could damage, disable, overburden, or impair the ELITE APP or interfere with any other party’s use and enjoyment of the same. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the ELITE APP.
- · You will not: (a) modify, copy or create any derivative works based on the ELITE APP or its Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party,; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by ELITE in the provision of the Services provided through the ELITE APP; (d) access or use (or allow a third party to access or use) the ELITE APP for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the ELITE APP or (f) otherwise use or exploit the ELITE APP in any manner not expressly permitted by this Agreement.
- This Agreement, together with any terms and policies that are incorporated into this Agreement by reference constitute the entire agreement and supersede any prior agreements between you and ELITE with respect to the subject matter hereof. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral.
- The waiver or breach of any of the terms and conditions of this Agreement shall not be deemed to constitute a waiver of any other breach or of the same or any other term or condition contained in this Agreement.
- If you use the ELITE APP, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your device, and you agree to accept responsibility for all activities that occur under your account. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that ELITE is not responsible for third party access to your account that results from theft or misappropriation of your account. ELITE reserves the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
- Any notices provided by ELITE under this Agreement may be delivered to you within the ELITE APP or to the email address(es) we have on file for your account. You hereby consent to receive notice from ELITE through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to ELITE under this Agreement must be delivered via first class registered U.S. mail, overnight courier, ELITE POOL & FITNESS MANAGEMENT, INC. 129-09 26th Avenue, Suite 403, Flushing, New York 11354.
- ELITE will not be liablefor any failure or delay in performance under this Agreement for causes beyond its reasonable control and occurring without fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.
- You agree to the use of electronic communications and hereby waive any rights or requirements under any laws or regulations that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
- ELITE reserves the right, in its sole discretion, to change the Terms under which the ELITE APP is offered. The most current version of the Terms will supersede all previous versions. ELITE encourages you to periodically review the Terms to stay informed of our updates.