FIT + FLATTER TERMS OF USE

Effective 4/20/2016, Updated 9/23/16, Updated 1/10/18, Updated 5/7/2018

Please read the following Fit + Flatter Terms of Use (“Terms”) carefully. They govern your use of Fit and Flatter, LLC’s (“Fit + Flatter”) fitandflatter.com website (the “Site”), online application(s), mobile application(s) and related services (collectively, the “Services”). By using the Services, you acknowledge that you have read and understood all of the Terms, and you agree to be bound by these Terms. If you do not agree to these Terms, please do not use the Services.

Fit + Flatter reserves the right to change the Terms under which the Services are offered in its sole and absolute discretion at any time without notice. Any such changes will be posted on the Site. It is your responsibility to review these Terms for any changes each time that you use the Services. All changes to the Terms are effective from the date posted. If you do not agree to the amended Terms, you must stop using the Services. You will be deemed to have accepted the amended Terms if you continue to use the Services after such amended terms are posted on the Site.

Registration for the Services

In order to access and use the Services, you must set up a user account (“Your Account”) and abide by these Terms. In setting up and maintaining Your Account, you agree to provide accurate information regarding your identity, your contact information, and any other information requested by Fit + Flatter related to the Services. You will set your own password for accessing the Services and shall be solely and strictly liable for everything that occurs through the use of Your Account. You are responsible for maintaining the confidentiality of your password and for restricting access to your computer and mobile device, and you agree to accept responsibility for all activities that occur under Your Account or password. You agree to immediately notify Fit + Flatter of any unauthorized use of your password or Your Account, or any other breach of security of which you become aware. If you are under thirteen (13) years of age, you may use the Site only with the express permission and involvement of your parent or guardian.

By setting up Your Account and using the Services, you represent and warrant that (a) you have not previously been suspended or removed from the Site; (b) are not a direct competitor of Fit + Flatter; (c) that you have full power and authority to agree to these Terms; and (d) that you expressly agree that you will receive communications from Fit + Flatter, including email messages and/or text messages. You acknowledge and agree that you consent to the receipt of such messages and that you receipt of such messages does not violate the CAN-SPAM Act and/or any state and federal laws related to Do-Not-Call registries. You may stop receiving such messages by following the opt-out instructions provided by Fit + Flatter in any such communication.

Your Use of the Services

You may use the Services only for legal and appropriate uses. Fit + Flatter reserves the right to make changes to the Services at any time and without notice. Your access to and use of the Services is completely at the discretion of Fit + Flatter, and your access to and use of the Services may be blocked, suspended, or terminated without prior notice at any time for any reason or for no reason, including, without limitation, for any violation of the following rules:

  • You must comply with all state, federal, and/or international laws, rules, policies and/or licenses governing communications while using the Services.
  • You may not impersonate any other persons or otherwise misrepresent your identity or your affiliation with any person, group or entity when using the Services.
  • You may not use the Services for commercial purposes.
  • You may not interfere or attempt to interfere with the Site or the Services or another person’s use of the Site or the Services by use of any program, script, command, device, software, routine, or otherwise.
  • You may not attempt to gain unauthorized access to any portion or feature of the Site or the Services, by hacking, password “mining” or any other illegitimate means.
  • You may not embed any page of the Site in “frames” running from other websites.
  • You may not mirror the Site or the Services on any other website or server.
  • You may not remove any copyright, trademark or other proprietary rights notices contained in or on the Site or the Services.
  • You may not transmit any worms, Trojan Horses, viruses, defects, or any items of a destructive nature.
  • You may not use automated means (such as harvesting bots, robots, spiders, or scrapers) to access the Site.

In addition, you acknowledge that the functional use of the Services may be dependent on the data related to your geographic location and geopositional data. Accordingly, you agree that your failure to provide (or make accessible) that data may limit the functionality of the Services.

License to Use the Site

Fit + Flatter grants you a limited, non-exclusive, non-transferable license to access and use the Services in legally authorized jurisdictions for personal non-commercial purposes. However, you may not download or modify the Site, or any portion of the Site, except with express written consent of Fit + Flatter. The Site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Fit + Flatter. Any unauthorized use of the Site shall automatically terminate the license granted to you by Fit + Flatter for such use.

License to Use Your Content

You shall be solely responsible for your actions and the contents of your transmissions to the Site. Although Fit + Flatter does not claim ownership of any of the photographs, videos, information, materials and other content that you submit via the Site, by submitting Your Content via the Site and/or uploading Your Content to a social media site with the hashtag #fitflatterme, you grant Fit + Flatter an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce and distribute Your Content on or in connection with the Site or otherwise in the promotion of Fit + Flatter’s business, products, and services. Further, you represent and warrant that you own all rights in and to Your Content and the use of Your Content by Fit + Flatter will not violate the rights of any third party, including any persons appearing in Your Content.

Ownership

The Services are licensed to, and not sold to, you for use under these Terms. All rights in the Services not expressly granted to you shall be deemed as reserved for the exclusive use by Fit + Flatter. You acknowledge and agree that the Services, all patent rights, trade secret rights, design rights, copyrights, trademark rights, and other property rights in the Site and the Services shall at all times remain the sole property of Fit + Flatter. You will not acquire any right, title or interest in or to the Site or the Services by reason of these Terms, except for the non-exclusive license to use the Services in accordance with these Terms.

Except as otherwise noted herein or otherwise on the Site, all information, documentation, and other content posted on this Site are the property of Fit + Flatter, its affiliates, and/or its licensors. The graphics, icons, and overall appearance of the Site are the property of Fit + Flatter. The posting of information, documentation, and other content does not constitute a waiver of any of Fit + Flatter’s, an affiliate’s, and/or a third party licensor’s proprietary rights in such information, documentation, and other content (such as, but not limited to, copyrights or trademarks) or a transfer of any such rights to you or any third party. The information, documentation, and other content posted on this Site are protected by U.S. and international copyright laws, both as individual works and as collections. You agree not to delete any copyright or similar notice from any information, documentation, and other content you obtain from this Site. You may not sell, republish, frame in another webpage, or use on another website, any of the information, documentation, and other content, or any portion thereof, posted in or on this Site without the prior written consent of Fit + Flatter. You may view, print, copy, and download portions of the information, documentation, and other content of the Site solely in connection with your use of the Site, and solely for your own individual, internal, non-commercial use or records. Fit + Flatter and its affiliates reserve the right to revoke this authorization at any time.

Dealings with Third Parties and Links

The Site may contain links to other third party external sites. The links are provided “as is.” You should be aware that you use them at your own risk. Your participation, communication or business dealings with any third party found on or through the Site, regarding the payment and delivery of the related goods or services, or any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Fit + Flatter does not endorse, and Fit + Flatter is not liable for any content, products, services, software or other materials available on such other sites, even if a page or pages of the other sites are framed with a page of the Site. Fit + Flatter is not responsible for the privacy practices or the content of other sites. For your protection, please refer to the terms of service and privacy policies of the respective sites. You acknowledge, understand and agree that Fit + Flatter shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such other sites. Fit + Flatter shall not be liable for any errors or delays in the content, goods or services available on such other sites, or for any actions taken or not taken in reliance thereon.

Disclaimer

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. FIT + FLATTER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR VIRUS FREE, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. INFORMATION OBTAINED THROUGH THE SERVICES HAS NOT BEEN VERIFIED, AND FIT + FLATTER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT SUCH INFORMATION IS USEFUL, SUITABLE, ACCURATE, COMPLETE, RELIABLE, OR OTHERWISE VALID.

FIT + FLATTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE.

FIT + FLATTER MAKES NO WARRANTY OR REPRESENATION THAT THE SITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. FURTHER, FIT + FLATTER MAKES NO WARRANTY OR REPRESENATION THAT SITE OR THE SERVICES WILL MEET YOUR EXPECTATIONS OR THAT ANY IDENTIFIED ERRORS WILL BE CORRECTED. IN PARTICULAR, OPERATION OF THE SITE AND THE SERVICES MAY BE MOMENTARILY INTERRUPTED DUE TO SITE MAINTENTANCE, UPDATES, OR TECHNICAL IMPROVEMENTS. FIT + FLATTER DISCLAIMS ALL LIABILTY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION.

YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE SITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.

Limitation of Liability

YOU ACKNOWLEDGE THAT YOU ARE 13 YEARS OF AGE, OR OLDER, OR THAT YOU ARE ONLY USING THE SERVICES UNDER THE SUPERVISION OF YOUR PARENT OR GUARDIAN. YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. NEITHER FIT + FLATTER, NOR ANY OF FIT + FLATTER’S DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, OR LICENSORS (COLLECTIVELY, “FIT + FLATTER ASSOCIATES”) SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS’ FEES, OR FOR LOST DATA OR LOST PROFIT, ARISING OUT OF YOUR USE OF THE SERVICES OR INABILITY TO GAIN ACCESS TO OR USE THE SERVICES OR OUT OF ANY BREACH OF ANY WARRANTY, EVEN IF FIT + FLATTER OR A FIT + FLATTER ASSOCIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.

IN NO EVENT WILL FIT + FLATTER OR ANY FIT + FLATTER ASSOCIATES BE LIABLE TO FOR CLAIMS THAT RESULT FROM YOUR RELIANCE ON ANY INFORMATION THAT YOU OBTAIN THROUGH YOUR USE OF THE SERVICES. SUCH INFORMATION IS PROVIDED FOR CONVENIENCE ONLY.

YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH FIT + FLATTER IS TO STOP USING THE SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, YOU AGREE THAT FIT + FLATTER’S LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO FIT + FLATTER IN THE THREE (3) MONTHS PRIOR TO THE ACCRUAL OF ANY SUCH CLAIM.

THE SERVICES ARE PROVIDED BY FIT + FLATTER FROM ITS OFFICES WITHIN THE UNITED STATES. FIT + FLATTER MAKES NO WARRANTY OR REPRESENTATION THAT MATERIAL AVAILABLE THROUGH THE SITE OR THE SERVICES IS LEGAL, APPROPRIATE, OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. IF YOU USE THE SITE OR THE SERVICES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, AND FIT + FLATTER ACCEPTS NO RESPONSIBILITY FOR SUCH USE.

YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL DISCLAIMERS IN THESE TERMS AND THE PROVISIONS OF THESE TERMS REFLECT A FAIR AND REASONABLE ALLOCATION OF RISK BETWEEN FIT + FLATTER AND YOU.

Indemnification

YOU WILL INDEMNIFY AND HOLD FIT + FLATTER AND ANY FIT + FLATTER ASSOCIATES HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF OR RELATING TO: (A) YOUR BREACH OF THESE TERMS; (B) YOUR USE OF THE SITE; (C) YOUR USE OF THE SERVICES ; AND (D) FIT + FLATTER’S USE OF YOUR CONTENT AS PERMITTED BY THESE TERMS.

Privacy Policy

Fit + Flatter respects and is committed to your privacy. Please review Fit + Flatter’s Privacy Policy [Privacy Policy], which also governs your visit to the Site and your use of the Services, to understand Fit + Flatter’s practices.

Law, Jurisdiction and Venue

These Terms and your access to and use of the Site and the Services are governed by, interpreted, construed, and enforced in accordance with the laws of the State of Indiana, without reference to its conflict of law provisions. All disputes arising out of or related to these Terms shall be exclusively brought and exclusively maintained in the courts of competent jurisdiction situated in Marion County, Indiana. You hereby consent to and waive any objection to the exclusive personal jurisdiction and venue of such courts.

Miscellaneous

You acknowledge and agree that the provisions, disclosures and disclaimers set forth in these Terms are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity. The failure of Fit + Flatter to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.

Fit + Flatter shall have the right to assign these Terms and to sublicense any and all of its rights under these Terms. These Terms, including any documents referenced herein and any additional operating rules as posted on the Site, represent the entire understanding between you and Fit + Flatter regarding your relationship with Fit + Flatter and your use of the Site and the Services. These Terms supersede all previous written or oral agreements between you and Fit + Flatter with respect to such subject matter. Notwithstanding any provision of these Terms, Fit + Flatter has available all remedies at law or equity to enforce these Terms.

MAKING A PURCHASE FROM FIT + FLATTER

Fit and Flatter and its owners/agents/contractors shall not be liable for any loss or damage arising from or relating to any transaction or anything associated therewith, and the payor (or its principal, if applicable) will defend and hold harmless Fit and Flatter. The payor (or its principal, if applicable) consents to the digital synthesis/distortion of all content by Fit and Flatter, including without restriction any changes or alterations as to creative direction, color, size, shape, perspective, context, and the like. Fit and Flatter is not responsible for any freight or shipping charges whatsoever, no matter the direction of transit. To the extent any portion of the terms and conditions in a prior section of this page conflict with anything in this section, or if there exists some other defect, this section controls. Fit and Flatter owns all content (including photography and videography) and the payor (or its principal, if applicable) specifically disclaims all right, title, and interest in and to all content with the exception of a non-assignable, non-exclusive license to reasonably use the content which the payor (or its principal, if applicable) grants by rendering payment (partial or full), but such license may be revoked for cause including for the commission of acts of immorality or acts that could otherwise injure Fit and Flatter or its reputation. Fit and Flatter may assign any of its rights. 

Any discounts are not a guarantee or waiver of future pricing.

Collaboration Terms and Conditions

Both parties stipulate that Fit + Flatter ("Company") will create deliverables as described in the product description for payor ("Client").

 

Client will enjoy the use of the Deliverables with respect to any content which enures to the sole benefit of Company as described in the Recitals above. The Client will enjoy a non-­exclusive, royalty-­free, irrevocable license to deliverables of Client Product for reasonable use in pursuit of its own commercial ends.

 

  1. Client hereby grants to Company, its parents, subsidiaries, agents, licensees, successors, and assigns the irrevocable, perpetual, and unrestricted right and license to use, re-use, publish, republish, and exhibit worldwide: (i) the Client’s name(s), alias(es), assumed business name(s), property descriptions, opinions, writings, and image, (ii) all:  URL, links, screenshots, and other content from any Client blogs, videos, social media accounts, and websites, and (iii) any and all content connected to the Company which Client would otherwise have rights to or interest in including without limitation, advertising and promotional materials, and any media, including without limitation, both physical and digital items.
     

  2. Client also hereby grants to Company, its parents, subsidiaries, agents, licensees, successors, and assigns the right to publicize the Client’s association with Company and its products and services, and the right to include on the Company’s websites a link to any Client blogs or websites, or other content.
     

  3. Client specifically consents to the digital compositing or distortion of any portraits, pictures, or videos including without restriction any changes or alterations as to color, size, shape, perspective, context, foreground or background. Client agrees to the use of any published matter.
     

  4. Client agrees that no advertisement or other material needs to be submitted to it for any approval.
     

  5. Ownership of Materials, Trademarks, Copyrights
     

    1. With the exception of 5(b) below, the Client agrees and certifies that neither it nor any associated person/entity has or will claim any right, title, or interest in or to any materials or content (physical or digital) connected to this Agreement or existing as a result of the Client’s connection with the Company; or in or to any of the Company’s trademarks, service marks, trade names, copyrights, patents, or other property. The Client and its duly authorized representative (identified at the end of this Agreement) agree that to the extent any proprietary or other rights in the materials or content so described in the last sentence exist, all right, title, and interest in and to such items are hereby assigned and conveyed to the Company.
       

    2. The Company hereby grants to the Client a non-­exclusive, royalty-­free, irrevocable license to reasonably use any and all photographic content the Company transmits to the Client in connection with the Consideration described in Section 1.
       

Miscellaneous Provisions
 

  1. The Client may not assign its rights or delegate its obligations under this Agreement without the Company’s prior written consent.
     

  2. Any agreement, covenant, obligation, or expectation extant prior to the effective date of this Agreement is null and void.
     

  3. All parties agree that a waiver of any obligation, condition, or covenant of this Agreement, or failure to exercise a remedy, will not be considered to imply or constitute a further waiver of the same or of any other obligation, condition, covenant, or remedy. All parties agree that if any term, covenant, condition, or provision in this document is held by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision will be reduced in scope by the court only to the extent deemed necessary by that court to render the instant provision enforceable and the remainder of the provisions in this document will in no way be affected, impaired, or invalidated as a result. The failure of either party at any time or times to demand strict performance by the other of any of the terms, covenants, or conditions in this Agreement will not be construed as a continuing waiver or relinquishment thereof and each may at any time demand strict and complete performance by the other of said terms, covenants and conditions.
     

  4. This Agreement will be construed and governed according to the laws of the State of Indiana and jurisdiction and venue of all matters relating to this Agreement will be vested exclusively in the federal, state, and local courts within the State of Indiana.
     

  5. This Agreement may be amended, modified, or clarified by written electronic communication via the email addresses listed below provided both parties explicitly indicate agreement to any such amendment, modification, or clarification in such communication.