The effective date of this Agreement is January 15, 2011.
As a User of the FitStudio Site you may, from time to time, post content and share it with other users, read content generated by other visitors to the FitStudio Site and other affiliated sites, and view third party postings and reviews regarding products and services. If you wish to post content to, or participate in the FitStudio Site other than simply by reading product information and content and reviews posted by others, you must register using the registration form available by clicking the “sign up” link near the top of any page on www.FitStudio.com.
The FitStudio Site Does Not Provide Medical Advice
The FitStudio Site provides health and fitness information applications and content published over the Internet and is intended only to assist users in their personal health and fitness efforts. The content appearing on the FitStudio Site is for informational purposes only and is not intended to be a substitute for, and should not be construed as, professional medical advice, diagnosis, consultation, evaluation or treatment.
Sears recommends that any and all Users use common sense when making use of any information on the FitStudio Site. Every individual’s fitness goals, needs and abilities are unique, and not all exercises or activities described on the FitStudio Site are suitable for everyone. As such, Sears recommends that users of the FitStudio Site exercise caution when exercising or leading others in fitness activities. You are urged and advised to seek the advice of a physician or other qualified health provider before beginning any dietary, fitness or health-related effort or regimen, following any training instructions you receive through the FitStudio Site, or participating in any event announced on the FitStudio Site. The FitStudio Site is intended for use only by healthy adult individuals. The FitStudio Site is not intended for use by minors, pregnant women, or individuals with Type 1 diabetes or any other medical or nutritional condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of dietary, fitness or health-related effort or regimen. Sears is not a medical organization and our staff cannot give you medical advice or diagnosis. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the FitStudio Site!
If you are in the United States and think you may have a medical emergency, call 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain.
The FitStudio Site does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned on the FitStudio Site. Reliance on any information provided by the FitStudio Site, FitStudio employees, others appearing on the FitStudio Site at the invitation of FitStudio, or other Users of the FitStudio Site is solely at your own risk.
The FitStudio Site may contain health- or medical-related materials that are sexually explicit. If you find these materials offensive, you may not want to use the FitStudio Site.
The FitStudio Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the FitStudio Site, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not access, use or register on the FitStudio Site. In the event we become aware you are under 18, we will terminate your registration.
Changes to the FitStudio Site
You shall be responsible for maintaining the confidentiality of your password, and you are fully responsible for all activities that occur under your User ID and password, whether or not you authorize such activities. Any User ID and password for your access to the FitStudio Site shall be for your personal, non-commercial use only. You agree to (a) immediately notify us of any unauthorized use of your User ID or password of which you become aware, and (b) ensure that you exit from your account at the end of each session.
Use of the Site/Services
You may use the FitStudio Site solely for your personal, non-commercial use. For example, you may use the FitStudio Site to solicit opinions, ideas and other input from, and share ideas and opinions with, other Users, and to search the FitStudio Site for User Content and business or product information. You may also invite people you know to join the FitStudio Site. You acknowledge and agree that we do not control the User Content posted to the FitStudio Site, or any links to other websites, including the content of any messages, and that we do not guarantee the accuracy, integrity or quality of any User Content. You further understand and agree that (i) we do not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements or other User Content posted on or otherwise displayed on or transmitted via the FitStudio Site, or (ii) we do not make any promises, guarantees or warranties with respect to any of the User Content or products, services, information, content or materials featured or mentioned on the FitStudio Site. All User Content, including advice and opinions posted by Users, comprises the views and responsibility of those who post such User Content, and does not necessarily represent the our views. You understand that, by using the FitStudio Site, you may be exposed to User Content that is offensive, indecent or objectionable. You are solely responsible for your reliance on any communications found on the FitStudio Site. User Content should not be taken as medical advice and we are not responsible for such information or for editing any factual errors or making any type of corrections to such information. Any action taken by you based on User Content is at your own risk.
IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS OF ANY NATURE WHATSOEVER ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY USER CONTENT, ANY ERROR OR OMISSION IN ANY USER CONTENT, ANY CLAIM THAT ANY USER CONTENT IS DEFAMATORY, LIBELOUS OR VIOLATES ANY RIGHT OF ANY THIRD PARTY, OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY. YOU EXPRESSLY AGREE THAT YOU BEAR ANY AND ALL RISKS ASSOCIATED WITH YOUR ACCESS TO, CONTRIBUTION TO, USE OF AND/OR RELIANCE ON USER CONTENT.
Restrictions on Rights to Use
- remove any copyright, trademark or other proprietary rights notice contained in or on the FitStudio Site;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the FitStudio Site;
- collect any information about other Users (including usernames and/or email addresses) for any purpose other than to solicit and/or share reviews with other Users;
- reformat or frame any portion of any Web pages that are part of the FitStudio Site;
- create user accounts by automated means or under false or fraudulent pretenses;
- create or transmit to other Users unsolicited electronic communications, such as “spam,” or otherwise interfere with other Users' enjoyment of the FitStudio Site;
- submit to the FitStudio Site any content that falsely states or implies that such content is sponsored or endorsed by us;
- transmit or upload to the FitStudio Site any item containing or embodying any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the FitStudio Site, any other Web site, or any computer or other device or system, or the enjoyment of the FitStudio Site by any User;
- use the FitStudio Site to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes);
- submit to the FitStudio Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity; or otherwise use the FitStudio Site to transfer or store illegal material, including any material deemed threatening or obscene;
- copy or store any User Content offered on the FitStudio Site other than for your personal, non-commercial use;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the FitStudio Site or the IT infrastructure used to operate and make the FitStudio Site available;
- use the FitStudio Site and/ or any User Content, intentionally or unintentionally, to violate any applicable local, state, federal or international law; or
- collect or store personal data about other Users in connection with the prohibited activities described in this paragraph.
User Content Posted By You on the FitStudio Site
Without limiting the generality of any other provisions of these Terms of Service, you agree:
- You may not post, upload or transmit any User Content that (i) infringes or otherwise violates any copyright, patent, trademark, trade secret, publicity or privacy right or other proprietary right of any party, or (ii) is proprietary to a third party, without such third party's prior written consent.
- You are solely responsible for any User Content you post, publish or display on the FitStudio Site or transmit to Users. We reserve the right, but undertake no obligation, to monitor disputes between you and any other User, or any other entity or individual, in connection with the FitStudio Site. You are solely responsible for the resolution of any disputes that arise between you and any other User or any other entity or individual.
- You will post only User Content you believe in good faith to be true and accurate, and you will not post to the FitStudio Site any User Content that is false, inaccurate, misleading or fraudulent.
- To the best of your knowledge, the Idea represents your own original work, you have all necessary rights to disclose the Idea to SHMC and in doing so and SHMC's use of the Idea will not infringe upon any other individual's or entity's rights.
- You understand that disclosure of your Idea to SHMC does not establish a confidential relationship or obligate SHMC to treat the Idea (or any related materials) as secret or confidential.
- You understand that SHMC has no obligation, either express or implied, to develop or use your Idea and that no compensation is due to you or anyone else for any inadvertent or intentional use of that Idea, related Ideas or Ideas derived from your Idea. You understand that SHMC assumes no obligation with respect to any Idea. For your own protection, we assume that you will rely on whatever patent protection you may want to secure, or have already secured, in your idea. In the absence of a separate formal contact, your rights shall be limited to those existing under the patent laws of the United States.
- If your Idea is the subject of a pending or issued patent, you have disclosed or will disclose that fact to SHMC.
- You understand that, except to the extent that these terms are superseded by a separate agreement in writing by you and SHMC, you hereby irrevocably release and forever discharge SHMC and its affiliates and subsidiaries from any and all actions, causes of actions, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever, which you now have or hereafter can, shall or may have against SHMC and its affiliates and subsidiaries or their respecting successors and assigns with respect to the Idea, including without limitation in respect of how SHMC and its affiliates and subsidiaries, directly or indirectly, use the Idea, with the sole exception in respect of the foregoing release and discharge being your right to bring a claim of patent infringement.
The following is a partial list of the kind of User Content that is illegal and/or is prohibited on or through the FitStudio Site. You may not post any content that:
- is patently offensive to users of the FitStudio Site, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- promotes illegal activities or conduct that is abusive;
- is threatening, obscene, defamatory or libelous;
- is pornographic or sexually explicit in nature; or
- seeks, or recommends providers of, material that exploits people under the age of 18 in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18.
If you believe any User Content or any other aspect of the FitStudio Site infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. Â¤512) by providing the following information:
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the FitStudio Site;
- Your address, telephone number and email address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright at issue or are authorized to act on the copyright owner's behalf; and
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.
Our designated copyright agent for notice of claims of copyright infringement on the FitStudio Site may be reached at the following address:
Sears Holdings Management Corporation
3333 Beverly Road
Hoffman Estates, IL 60179
Or by email: firstname.lastname@example.org
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Chicago, IL, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, SHMC may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at SHMC's sole discretion.
As part of the FitStudio Site, Sears offers fitness professionals the option to submit and display profile information regarding the fitness professional’s credentials and service offerings. Such fitness professionals acknowledge that they are not employees of Sears. Furthermore, by using the FitStudio Site, Users specifically acknowledge that Sears makes no warranties or representations about the accuracy of any credentials or background checks displayed by fitness professionals or the character of any fitness professionals listed on the FitStudio Site.
Any trademarks, service marks, and other marks and indicators of source or origin that are displayed on the FitStudio Site are the proprietary property of Sears or our respective licensors, as applicable. None of such marks may be used in connection with any other product or service, in any manner that is likely to cause confusion among consumers, or to disparage or discredit the owner of such mark or its affiliates. Any trademarks of third parties that appear on the FitStudio Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the FitStudio Site without the express written permission of the trademark owner.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE FITSTUDIO SITE, AND OF ANY USER CONTENT, INFORMATION, ADVICE, SERVICES, PRODUCTS, AND OTHER MATERIALS CONTAINED IN OR DESCRIBED ON THE FITSTUDIO SITE, IS ENTIRELY AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION AND MATERIALS ARE PROVIDED ON AN AS AVAILABLE BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND/OR USE OF THE FITSTUDIO SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT PROVIDED VIA THE FITSTUDIO SITE, AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE FITSTUDIO SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION AND CONTENT ACCESSIBLE VIA THE FITSTUDIO SITE IS ACCURATE, COMPLETE OR CURRENT, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM USE OF, INABILITY TO USE, OR RELIANCE ON ANY ASPECT OF THE FITSTUDIO SITE, INCLUDING BUT NOT LIMITED TO USER CONTENT AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE FITSTUDIO SITE. FURTHER, WE MAKE NO REPRESENTATIONS AND WARRANTIES REGARDING: (I) THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS ON THE FITSTUDIO SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE, (II) THE SUITABILITY OF ANY EXCERCISES, TRAINERS OR OTHER CONTENT FOR ANY GIVEN USER, (III) THE SATISFACTION OF ANY GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUGS OR OTHER HEALTH-RELATED PRODUCTS OR SERVICES, OR (IV) THAT THE FITSTUDIO SITE OR THE USER CONTENT WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM US OR THE FITSTUDIO SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE INFORMATION ON THE FITSTUDIO SITE IS PROVIDED WIH THE UNDERSTANDING THAT NEITHER SEARS NOR THE OTHER FITSTUDIO USERS, WHILE SUCH USERS ARE PARTICIATING IN FITSTUDIO, ARE ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE. SEARS ENCOURAGES YOU TO SEEK APROPRIATE PROFESSIONAL ADVICE OR CARE FOR ANY SITUATION OR PROBLEM WHICH YOU MAY HAVE. IN PARTICULAR, THE ACTIVITIES AND EXERCISES DESCRIBED IN TRAINING PROGRAMS AND ARTICLES ON THE FITSTUDIO SITE CAN BE DANGEROUS AND MAY RESULT IN INJURY OR DEATH. YOU MUST CONSULT WITH A LICENSED PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER) BEFORE PARTICIPATING IN ANY OF THE ACTIVITIES DESCRIBED ON THE FITSTUDIO SITE.
Sears reserves the right to refuse or cancel any orders placed for products and/or services which the sale or use of such product and/or service in your State is restricted or prohibited. In the event of a pricing error on the FitStudio Site, Sears reserves the right to cancel any orders resulting from such pricing errors.
To properly serve all customers, Sears reserves the right to limit quantities. In this case, only one (1) of this limited quantity items may be placed in your shopping cart. Sears further reserves the right to cancel multiple orders of the limited quantity item purchased by the same User and/or shipped to the same delivery address.
Sears may display advertising prints for products sold through a FitStudio Site. Sears attempts to display the colors of the products shown on the FitStudio Site as accurately as possible. However, we cannot guarantee that the color you see matches the product color, as the display color depends, in part, upon the monitor used by you.
Limitation on Liability
IN NO EVENT SHALL SEARS OR THEIR RESPECTIVE AFFILIATES, OR THE SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY OF THE FOREGOING, BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, UNAVAILABILITY OF, INABILITY TO USE OR IMPROPER USE OF THE FITSTUDIO SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE FITSTUDIO SITE, USE OF OR PARTICIPATION IN ANY TRAINING PROGRAM OR ANY OTHER PRODUCT PURCHASED OR AVAILABLE THROUGH THE FITSTUDIO SITE, OR THE DISCLOSURE OR MISUSE OF ANY USER'S PERSONAL INFORMATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN ANY EVENT, SEARS' RESPECTIVE TOTAL MAXIMUM LIABILITY IN RESPECT OF THE FITSTUDIO SITE OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO THE USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE FITSTUDIO SITE, IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS ($100.00). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Third Party Advertisements and Services; Links to Third Party Sites
We may display on the FitStudio Site advertisements from third parties, such as banner advertisements and pop-up texts, and links to third party sites. We are not responsible for the content of such advertisements or links, any products, services or other materials relating to such advertisements, any linked site, or any link contained in a linked site. The display of any advertisement or link does not imply endorsement by us of the advertisement or linked site or any content therein. IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE FITSTUDIO SITE, ANY PRODUCTS, SERVICES, EVENTS OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD-PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE.
In addition, you may order services or merchandise through the FitStudio Site from other persons not affiliated with Sears (“Seller”). For example, you may choose to register for a fitness event on the FitStudio Site. All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. Sears makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers. You will not consider Sears, not will Sears be construed as, a party to such transactions, whether or not Sears may have received some form of revenue or other remuneration in connection with the transaction. You agree that Sears will not be liable for any costs or damages arising out of such transactions, either directly or indirectly.
Placing an Order
At this time, with the exception of Sears' gift cards, Sears ships merchandise to locations within the 50 United States. Sears ships to international locations via a third party partner. Sears does not ship to Puerto Rico, Guam or the US Virgin Islands. Some oversized items requiring freight delivery can not be shipped to Alaska or Hawaii. Sears gift cards are shipped within the continental United States, as well as Alaska, Hawaii and Puerto Rico. The risk of loss and title for all merchandise ordered on this Website pass to you when the merchandise is delivered to the shipping carrier. To see Sears shipping and delivery policies in more detail, please see Shipping & Delivery.
You may purchase merchandise from the FitStudio Site by using any one of the payment options listed in Payment Options. Sears reserves the right to change its payment procedures at any time without prior notice to you.
Sears charges sales tax for merchandise ordered on the FitStudio Site based on the applicable state sales tax rate and the location to which the order is being shipped.
Once your order is submitted to us, we cannot change or cancel an order until your merchandise is received by you. All returns of merchandise are subject to Sears return policy, available under Returns/Cancellations.
Contact and Violations
Please contact us with any questions regarding these Terms of Service. Please report any violations of the Terms of Service to email@example.com.
One or more patents may apply to this Web site, including without limitation: U.S. Patent Nos. 5,528,490; 5,761,649; 6,029,142; and 5,790,474.