Please read this Agreement carefully and in the event of ambiguity contact us before use. You understand that by checking the box and clicking the “submit” button, or by using the Platform, you are agreeing to be bound by this Agreement. If you do not accept this Agreement in its entirety, you may not access or use the Platform. If you agree to this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that event, “you” and “your” will refer and apply to that entity and you individually and jointly.
Article 1: Term and Termination
Section 1.1 Term. The term of this Agreement commences on the date of acceptance (the “Initial Term”) and continues for an initial term of one year (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew in successive one (1) year terms (each a “Renewal Term”) until terminated in accordance with Section 1.2 below. The Initial Term and all Renewal Terms shall be referred to herein as the “Term”.
Section 1.2 Termination. You or Ketogains may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or in the alternative by Ketogains terminating or suspending your account). Termination of this Agreement shall have no effect on other agreements entered between you and other parties through the Platform.
Section 1.3 Consequences of Termination. Termination will not relieve you of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, will be charged to your account or other form of payment pursuant to Article 4.
Section 1.4 Survival. Articles 2, 4, 5, 6, and 7 of this Agreement will survive termination by any party.
Article 2: The Ketogains Platform
Section 2.1 Right to Participate. By using the Platform, you warrant that you are an eligible party with the “Right to Participate.” The Right to Participate extends only to persons who:
- have reached the age of eighteen (18) and with capacity to enter into contracts under applicable law (“adults”) and who reside in the United States;
- are under the age of eighteen (18), with written consent from a parent or legal guardian, and who reside in the United States,
- or adults outside the United States who, by using the Platform, consent to access the Platform in accordance with the laws of the United States and these Terms.
Section 2.2 Warranties by Means of Participation. By utilizing the Platform, you make certain warranties to us that we rely on in providing you services. You warrant and guaranty that you are not a citizen or a resident of a country in which use or participation in the Platform is prohibited by any law, regulation, treaty, administrative order, or decree. You warrant that you are not associated with any countries with which the United States has any embargoes prohibiting or affecting your Right to Participate. You warrant that all submitted information is truthful, accurate, and will be maintained.
Section 2.3 Purpose. The Platform has specific uses and by entering this Agreement you are agreeing to not use the Platform for any improper purposes. The Platform was designed to offerhealth, nutritional, and fitness education, resources, and guidance (the “Services”) to you. The Services include Ketogains providing you with access to consulting, coaching, educational classes, and bootcamps. Each time you request Services a “Contract” is formed between you andKetogains.
Section 2.4 Health Disclaimer. By using the Platform, you acknowledge that you understand that all products, services, instruction, counseling, coaching, tools, and content provided to you by Ketogains is intended for education on nutrition and exercise. It is not the intention of Ketogains to provide any medical or nutritional advice or provide any medical diagnosis, or to provide a substitute for a medical diagnosis, by using Ketogains’ Content and/or services. You acknowledge that you understand that Ketogains is not a medical organization of any kind and Ketogains’ staff cannot provide you any medical advice, diagnosis, or treatment. Nothing contained in the Platform shall be construed as such advice, diagnosis, or treatment.
You are urged and advised to seek the advice of a physician before beginning any weight loss effort or regimen. You must determine if you have any medical condition, including even thoseconditions thought to be due to diet, exercise and nutrition, and you are required to go see a medical professional before you engage in our Content.
Section 3: The Counseling Services
Section 3.1 Counseling Services. Ketogains may offer counseling services, which may include but is not limited to instruction in the development of eating habits, physical exercise, rest, stress reduction, healthy home and workplace environment, attitudinal and behavior changes. The counseling offered under this Agreement is acknowledged and understood to be of a strictly non-medical and non-psychological nature and is accepted solely and exclusively for instructional purposes only.
Suggestions made for diet and / or supplement products are intended to support and balance the body with the sole intention of enhancing general health, and are not intended to diagnose, treat, cure, or prevent any disease.
Nothing expressed, written, or implied should be considered as medical advice for dealing with any given medical condition. The information received cannot replace the advice or treatment of a qualified health care practitioner. You also agree that you have been advised to discuss the recommendations with your prescribing physician.
It is recommended to every person, prior to joining in a physical fitness /nutrition program, undergo a complete physical examination by their physician.
Section 3.2 Representations by you. In consideration of your requesting a fitness / nutritioninstruction program and in seeking advice concerning the present state of your physical condition and fitness, you accept any and all responsibility for the present state of your general physical condition and fitness, you accept any and all responsibility for and assume the risk of, any and all injury or damage to your person and/or property and the potential for unusual, but possible mental or physiological results including, but not limited to, abnormal blood pressure, fainting, heart attack or death, which might arise whether directly or indirectly, as a result of following a fitness/nutrition instructional program suggested by your coach.
Because exercise / diet modifications should not be performed under certain medical conditions, you affirm that you have stated all your known medical conditions and have been honest about your medical status.
Section 3.3 Disclaimer of Guarantee. You understand that everyone will lose weight at different rates and so you may lose weight slower or faster than others. Ketogains makes no guarantees on results based on any consulting services rendered to you.
Section 4: Payment and Tax Reporting
Section 4.1 Our Fees. You are obligated to pay for the Services, unless specifically notified otherwise in writing by us. For all purchases and payments for reimbursement costs, fees orexpenses associated with a Service, Ketogains will charge your credit card according to the amount agreed upon between you and Ketogains for the use of the Services, and you hereby authorize us to charge your credit card for such amounts. Ketogains retains the right, in its sole discretion, to place a hold on any payment for a completed Service transaction.
No refunds or credits will be provided once your credit card has been charged. At Ketogains‘ sole discretion, refunds or credits may be granted in extenuating circumstances or to correct any errors made by Ketogains, subject to any applicable cancellation fee.
While Ketogains will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold Ketogainsharmless for any damages that may result therefrom. Ketogains will use third party services to process credit card information. For further information regarding that service, please contactKetogains to request information about Ketogains’ credit card processing providers.
You will be liable for all transaction taxes on the Services (other than taxes based on Ketogains’income or employment tax burden of Ketogains or its Contractors).
Section 4.2 Non-Payment. If You fail to timely pay amounts due under this Agreement or a Contract, your account with Ketogains may be suspended and any work-in-progress will be stopped on all Contracts between you and Ketogains, at Ketogains’ sole discretion. Without limiting any other available remedies, you must reimburse us for amounts due upon demand, plus a late fee of five percent (5%). In addition, any amount owed under this section will be subject to interest at eighteen percent (18%) per annum or the highest allowable interest rate in the applicable jurisdiction, whichever is higher. In our sole discretion we may set off amounts due against other amounts received from or held for you and make appropriate reports to credit reporting agencies and law enforcement. Ketogains will to the fullest extent possible cooperate with law enforcement at its sole discretion under this section.
Section 4.4 Cancellation Policy. By requesting Services from Ketogains, you agree to the following cancellation policy:
- If you cancel prior to Ketogains’ providing any Services, including providing you with materials and information in part or in whole, you agree to pay a $99.00 cancellation charge.
- There are no refunds, transfers of service, or cancellations on personalized training or group coaching training (bootcamp) programs once training materials are provided or bootcamp begins.
- After Ketogains commences rendering Services, you may only cancel the Services if the Services are subscription-based and you provide 30-day’s written Notice of cancellation toKetogains, which will result in a non-refundable cancellation fee of 30 days prorated. If you provide no cancellation notice for cancelling subscription-based Services, you agree to pay a $155.34 cancellation fee.
- There shall be no cancellation or refund after the Ketogains commences rendering Services.
This Section includes and hereby incorporates by reference the Contract for Services, including any personal training services agreement, and in the event of a conflict between such Contractand agreements and this Agreement, this Agreement controls.
Article 5: General Policies
Section 5.1 Marketing Consent. You authorize and consent to allow Ketogains to use for publicity or marketing purposes, photographs provided by you to Ketogains. Ketogains will take reasonable steps to edit such photographs to omit your face and any recognizable birthmarks ortattoos, to the extent possible.
Section 5.2 Your Content on Our Platform. You acknowledge that any information provided by you that you make public on the Platform (“Posted Content”) is not confidential and that suchPosted Content may be used by any third party without our control, and you assume the risk of misuse of your Posted Content by third parties.
Section 5.3 Validation of Information. We may from time to time need to confirm or validate information that you provide to us via the Platform. You authorize us to use third parties and internal mechanisms to confirm any information you provide to us. Failure to provide any information that we request is deemed a violation of this Agreement and may be cause for suspension of the Services and your access to the Platform.
Section 5.4 Non-Circumvention. You acknowledge that our Platform derives its income from collecting and deducting a portion of the fees that you pay for our Services and then paying various third parties for their services to us, such as, but not limited to, the Contractors. You agree to abide by all circumvention related language in all agreements on the Platform and with Ketogains.
In addition, you expressly agree that for a period of twenty-four (24) months from the time you last used the Platform or the Services that you will refrain from Circumvention Conduct with the Contractors and other Clients of Ketogains, you will only contact Contractors to engage in or inquire about engaging the services of Ketogains, and you will refrain from contacting Clientsthat you become aware of through the Platform.
For the sake of clarity, Circumvention Conduct includes, but is in no way limited to, any:
- attempt to submit proposals, solicit, contract, hire, or pay Contractors outside of the Platform;
- attempt to accept proposals, deliver services, invoice, and/or receive payment or otherwise contract outside of the Platform with Contractors;
- attempt to lower the amount of money paid for Services shall be deemed Circumvention Conduct; and
- Contact with other Clients to discuss Services contracted with us.
Circumvention Conduct includes, but is not limited to, Circumvention Conduct that is indirect through one or more companies or related entities or parties of you or the Contractor.
Should you be found in violation of this Section, you agree to pay Ketogains an amount equal to triple the income lost by Ketogains as a result of the Circumvention Conduct. You understand that the true damage and loss of goodwill caused by Circumvention Conduct is impossible to calculate and quantify at this time and that the fee charged for Circumvention Conduct is a reasonable sum of liquid damages. It is expressly understood that this is not a penalty but merely attempts to make Ketogains whole for loss of goodwill, loss of present income, loss of future income and other damages expressly understood to be the result of Circumvention Conduct.
By using the Platform, you agree and assume to take on the affirmative duty to notify Ketogainsof any Circumvention Conduct by contacting us at the address listed in Section 8.4 below. Failure to notify Ketogains of any Circumvention Conduct shall be deemed itself, Circumvention Conduct.
Section 5.5 Limitations. You agree to the following limitations in accessing the Platform:
- You will not access, or attempt to access, our Platform or the Site by any means other than the interface provided and shall not use the information from the Platform for any purpose other than the reasons it was made available. We reserve the right to investigate any Posted Content that we reasonably believe violates any section of this Agreement.
- You will not transmit any information that infringes on any intellectual property rights of any third parties or that you do not have the right to transmit by way of any regulation related to intellectual property rights, government national security regulations or other valid law, regulation or decree. This shall expressly include private confidential information that you have any duty to conceal from third parties included, but not limited to, physician-patient or attorney-client related privileges.
- You will not impersonate any other person or entity while using the Site or the Platform or otherwise promote any criminal activity or enterprise or provide institutional support for any illegal activities.
- You will not solicit information from any person under the age of eighteen (18).
- You will not use the Site, Platform, or any other access point to harvest or collect email addresses or other contact information for the purposes of sending unsolicited emails or communications of any kind.
- You will not use the Site or Platform to offer, buy, or sell any goods or services that are not authorized by us.
- You shall not disclose to any third party or use for any purpose other than the purpose for it was made available any information belonging to us that is marked as confidential, copyrighted, trademarked or proprietary. You shall also not access or attempt to access any materials not intentionally made available or provided through the Platform or Site.
- You will not copy, modify, create derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any of our source code or any other proprietary parts of our Site.
Failure to comply with this and other Agreements may result in your access to the Site or Platform being suspended. We also reserve the right to self-help in connection with enforcing Agreements to the fullest extent allowable under the law. Once suspended you may not continue to use the Site and any attempt to circumvent a suspension by creating another account (a “Circumvention Account”) shall be deemed a breach of the Agreement. We reserve the right to reclaim any funds in any accounts that we deem are Circumvention Accounts at our sole discretion and you hereby acknowledge that using Circumvention Account(s) shall result in forfeiture of all funds in any accounts you hold on the Site. Violations of the Agreement may be prosecuted to the fullest extent of the law, but we make no warranty that guarantees our users that we will prosecute parties in breach of the Agreement on their behalf or to their benefit.
Section 5.7 Prohibited Activities. You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Platform. In connection with your use of the Platform, you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our terms, policies or standards;
- use the Platform for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies endorsement, partnership or otherwise misleads others as to your affiliation with Ketogains;
- use the Platform in connection with the distribution of unsolicited commercial messages (“spam”);
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behavior;
- use, display, mirror or frame the Platform, or any individual element within the Platform,Ketogains name, any Ketogains trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Platform, withoutKetogains’ express written consent;
- dilute, tarnish, or otherwise harm the Ketogains brand in any way, including through unauthorized use of the Platform, registering and/or using Ketogains or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Ketogains domains, trademarks, taglines, promotional campaigns or the Platform;
- use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Platform for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Ketogains or any of Ketogains’ providers or any other third party to protect the Platform;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Platform;
- export, re-export, import, or transfer the Platform except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
Section 5.8 Warranties. In addition to any other warranty made hereunder, you warrant the following:
- Prior to engaging in the Service, your either:
i. Received a physician’s permission to participate in the Services after having a physical examination; or
ii. Decided to participate in this training program without the approval of a physician.
- You voluntarily agree to participate in activities, as part of the Services, which may include physical activity and the use of equipment and machinery and you assume all risk of personal injury, death, and property damage resulting from such activities.
Article 6: Role of Ketogains
Section 6.1 Contracts and No Employment. You recognize that you are not an employer or partner of Ketogains, nor is Ketogains or any of our employees or contractors your employee or partner, and that we in no way supervise direct or control your work or services. The relationship between you and Ketogains is that of client or prospective client, and you expressly acknowledge that at no time will there be deemed to be an employment relationship, partnership, franchise, or joint venture between you and Ketogains, or one or more of our employees/contractors.
Article 7: Warranty Disclaimers, Limitation of Liability and Indemnification
Section 7.1 Warranties and Disclaimers. We make no warranty or representations with regard to the services provided by Contractors, the work product, the Site, the Platform or the activities related to this Agreement unless provided for in a Contract. To the maximum extent permitted all warranties are disclaimed, unless expressly in writing within this Agreement or a Contract. Disclaimer of warranty is with regard to but in no way limited to, express or implied conditions, warranties of merchantability, fitness for a particular purpose, and non-infringement. Any remedy you may have must be found expressly in this Agreement or a Contract, or otherwise is deemed waived by you, and in addition:
- We are not responsible nor make any warranties regarding Client’s results, which may varybased upon factors such as body type and nutrition.
- We are not responsible for any injuries that you sustain resulting from physical activities, use of equipment, machinery or public or private facilities involved in the Services.
- We are not a party to any engagements, transactions, or dealings between you and third-parties including other Clients.
Section 7.2 Limitation of Liability. We will in no event, under any circumstances, for no reason whatsoever be liable for any special, consequential, incidental, exemplary, indirect, or punitive damages to you for the Services through the Site or the Platform. In addition, there shall be no liability for litigation costs, lost profits or lost data.
Liability of Ketogains to any user or visitor to the Site for any claim arising out of or in connection with this Agreement, the Site or the Platform, shall be limited to the lesser of (i) two thousand US Dollars ($2,000.00) or (ii) any fees retained by us with respect to Contracts on which you were involved during the one-month period preceding the claim. These limitations will apply to any liability, arising from any cause of action whatsoever, even if the limited remedies provided herein fail of their essential purpose. By using the Site and the Platform you agree that this limitation of liability is reasonable.
Section 7.3 Indemnification. You will indemnify, defend, and hold harmless Ketogains and its subsidiaries, affiliates, officers, agents, employees, and representatives (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses including, but not limited to, reasonable attorneys’ fees and all related costs and expenses arising from or relating to your use of the Platform, any Services or any Contract entered into by you, any Posted Content, your violation of these Terms of Service, and/or your violation of any rights of another.
Article 8: Miscellaneous Provisions
Section 8.1 Entire Agreement. This Agreement sets out the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
Section 8.2 Compliance. You agree that you will not violate any laws or third-party rights on or related to the Platform. Without limiting the generality of the foregoing, you agree to comply with all applicable import and export control laws and third parties’ proprietary rights. The software and the transmission of applicable data, if any, is subject to United States export controls. No software may be exported or re-exported in violation of U.S. export laws. Using the Platform is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Site and the Platform, including as it concerns online conduct and acceptable content.
Section 8.3 Modifications. No amendment or modification to this Agreement will be binding upon us unless in a written instrument signed by a duly authorized representative of Ketogains. For the purposes of this Section, a written instrument will expressly exclude electronic communications such as email and electronic notices but will include facsimiles.
Section 8.4 Notices; Consent to Electronic Notice. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices related to or necessary for the completion of this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Platform. Notices hereunder will be valid only as follows:
- If to you: (i) via electronic mail (e-mail) that you provide to us when signing up for the Platform, or (ii) posting on the Site. The date of receipt will be deemed the date on which such notice is transmitted.
- If to us: via U.S. certified mail, return receipt requested, or via nationally or internationally recognized overnight courier (i.e. DHL, FedEx, UPS, etc.) to the following address, that may be modified without notice on the Site, the date of receipt being one (1) business day after actual receipt by us:
Ketogains Brands, LLC
479 Sam Ridley Pkwy, Suite 105
Smyrna, TN 37167 USA
Section 8.5 No Waiver. The failure or delay of Ketogains to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect our right to later enforce or exercise it, unless we issue an express written waiver, signed by a duly authorized representative of Ketogains.
Section 8.6 Assignability. You may not assign this Agreement, or any of its rights or obligations hereunder, without our prior written consent in the form of a written instrument signed by a duly authorized officer of Ketogains. We may freely assign this Agreement without your consent. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
Section 8.7 Severability. If any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
Section 8.8 Choice of Law. This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Contract, will be governed by and construed in accordance with the laws of the State of Florida, USA, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Section 8.9 Forum Selection, Attorney’s Fees, Personal Jurisdiction and Venue. You agree that any claim or dispute arising under this Agreement or your use of the Platform must be resolved through binding arbitration with a tribunal sitting in Miami-Dade County, Florida, USA,pursuant to the rules of the American Arbitration Association. If we are successful in any action whether defending or prosecuting against you, you agree to pay all attorney’s fees and costs associated with that action. You hereby irrevocably consent to the personal jurisdiction and venue of the arbitration tribunal. You further agree that any issue you have with Ketogains that arises under this Agreement is arbitrable and that Miami-Dade County, Florida, USA, is a convenient forum for any disputes that arise between us.
Section 8.10 Prevailing Language. The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any.
Section 8.11 Proprietary Rights. Ketogains and its licensors reserve all rights, title, ownership and interest in and to copyrights, trademarks, service marks, trade names, trade secrets, patents and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected in and to the Platform. You may not use the Platform except as necessary for the purposes of discharging obligations under this Agreement and any Contract entered into pursuant to this Agreement. We reserve the right to withdraw, expand and otherwise change the Platform at any time in our sole discretion.
Section 8.12 California Residents. The following disclosure is made pursuant to California Online Privacy Protection Act: When you use our Service, other parties, such as Google may collect personally identifiable information about your activities over time and across different websites or online services.