LAST UPDATED — 7/26/2022
If you have entered into a written agreement with Fitness Center, these terms and conditions will supplement such agreement. If there is a conflict between the provisions of these terms and conditions and written agreement, and unless otherwise expressly agreed by the parties in writing that specific terms of these terms and conditions shall supersede specific provisions of the written agreement, then the provisions of the written agreement shall prevail. The Website, Mobile Application, Services and Website Content (defined below) are only for use in the United States, and any use or access of the foregoing outside of the United States is prohibited.
The information presented on or through our Services or by any form of e-mail communication is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to our Website, Mobile Application, Services and Website Content or by anyone who may be informed of any of their contents.
All content on the Services, including the logo, articles, documents, designs, specifications, other text, and graphics on the Website or Mobile Application (collectively, the “Website Content”) is the intellectual property of Fitness Center and/or our clients. The Website Content available on these Services is protected by trademark, trade dress, copyright, and patent laws of the U.S. The Website Content may not be copied, imitated, used, or disseminated in whole or in part, without the prior written permission of Fitness Center. You may view, print, copy, and download portions of the Website Content solely in connection with your use of the Services, and solely for your own individual, internal, non-commercial use or records. Fitness Center reserves the right to revoke this authorization at any time.
You may not reverse engineer, decompile, modify, reproduce, distribute, publish, or disassemble any software except and only to the extent that such activity is expressly permitted by Fitness Center.
You represent and warrant that (a) you are not under the age of 18; (b) you have not previously been suspended or removed by Fitness Center; (c) you understand that the use of the Services is at your own risk; or (d) it is not illegal or prohibited in your country of origin for you to access or use this Website, Mobile Application, and/or Services.
a. You must provide correct and complete information if requested by us if you use the Services or certain features on the Website and Mobile Application. As part of your use of the Services, you may be required to submit certain information (including any name, contact information, business information, and other personal information), or registration details or other information to use the Services (collectively, the “User Information”).
b. By submitting any information to us, you represent and warrant that:
Such User Information is accurate, complete, and current; and,
c. You acknowledge, consent and agree that we may access, preserve, and disclose your information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims of a violation of the rights of third-parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of Fitness Center, its users and the public.
d. Certain Services may be made available through a password protected area on this Website and Mobile Application. We may allow you to register and obtain an account (a “User Account”) to access such materials. If you choose, or are provided with, a username, password for your User Account, or any other piece of information as part of our security procedures. You must treat your User Account and its username and password as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your User Account is personal to you and agree not to provide any other person with access to this Website, Mobile Application, or portions of it using your username, password, or other security information. You are responsible for any activity conducted through your User Account, and liable for any related loss arising from that conduct. You agree to notify us immediately of any unauthorized access to or use of your User Account or any other breach of security.
f. To the extent you provide any content to us via the Services (the “User Content”), you represent and warrant that you have the necessary rights, title and interest in and to the User Content to grant Fitness Center a worldwide, sublicensable, royalty-free, right and license to use, display, modify, store, and create derivative works of such User Content.
a. Your use of the Services may also be affected by other agreements (the “Additional Agreements”) with us and/or an agreement with our affiliates for your affiliate accounts linked to the Service.
You expressly agree to refrain from doing, either personally or through an agent, any of the following:
a. Use any device, a robot, spider, script, automated process, or manual process or other means to harvest information about other users, or any content from the Services.
b. Transmit, install, upload, or otherwise transfer any virus, malware, or other item or process to the Services that in any way affects the use, enjoyment, or service of the Services.
c. Transmit, install, upload, or otherwise transfer any virus, malware, or other item to the Services that in any way affects the use, enjoyment or service of any user’s or Fitness Center employee’s computer or other medium used to access the Services.
d. Transmit, install, upload, or otherwise transfer any material to the Services that is fraudulent, inaccurate, offensive, violent, lewd, salacious, explicit, discriminatory, illegal, infringing, hateful, pornographic, or sexually suggestive. Fitness Center reserves the sole discretion to determine the nature of the material.
e. Transmit, install, upload, or otherwise transfer to the Services any content (including any User Content) that violates or infringes the intellectual property rights of others (including but not limited to copyrights, trademarks, trade secrets, patents, and publicity rights).
f. Modify the information, including headers, found on the Services.
g. Transmit, install, upload, or otherwise transfer to the Services any unauthorized advertisement or communication, including but not limited to spam, and phishing emails.
h. Engage in any action that imposes an unreasonable or disproportionately large load on the Services, or that Fitness Center determines is detrimental to the use and enjoyment of the Services.
i. Use the Services for any unlawful means.
j. Transmit, install, upload, post or otherwise transfer any information in violation of the laws of the United States or post any information that could result in civil unrest.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS FITNESS CENTER AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, LICENSORS, DIRECTORS, SUPPLIERS, OTHER PARTNERS, EMPLOYEES AND REPRESENTATIVES FROM ANY CLAIM OR DEMAND, INCLUDING ATTORNEY’S FEES, MADE BY ANY THIRD PARTY TO OR ARISING OUT OF YOUR USE OF THE WEBSITE, MOBILE APPLICATION, OR YOUR USE OF OR CONNECTION TO THE SERVICES (INCLUDING ANY USE BY YOU ON BEHALF OF A THIRD PARTY), OR THE USER CONTENT. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO PARTICIPATE IN OR ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
WE RESERVE THE RIGHT TO DENY SERVICE TO ANYONE, AT ANY TIME, AND FOR ANY REASON, AS ALLOWED BY LAW, OR FOR ANY OTHER REASON.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
YOUR USE OF THE WEBSITE, MOBILE APPLICATION, THE WEBSITE CONTENT, AND ANY SERVICES, IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. WEBSITE, MOBILE APPLICATION, THE WEBSITE CONTENT, AND ANY SERVICES, ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. FITNESS CENTER DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FITNESS CENTER MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE, MOBILE APPLICATION, THE WEBSITE CONTENT, AND ANY SERVICES.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY WEBSITE CONTENT FROM FITNESS CENTER, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
TO THE FULL EXTENT PERMITTED BY LAW, FITNESS CENTER IS NOT LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH FITNESS CENTER, EVEN IF FITNESS CENTER HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE THE WEBSITE, THE WEBSITE CONTENT, OR ANY SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE WEBSITE, MOBILE APPLCATIION, OR ANY SERVICES; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, MOBILE APPLICATION, OR ANY SERVICES, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (d) WEBSITE CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, RELY UPON, MODIFY OR DISTRIBUTE. IN ANY EVENT,
FITNESS CENTER’S LIABILITY FOR ANY CLAIM ARISING OUT OF USE OF ITS SERVICES IS LIMITED TO THE LOWER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID FOR THE USE OF THE SERVICES FOR THE PRIOR THREE (3) MONTHS.
We reserve the right, at our sole discretion, to terminate any and all Services provided to you at any time without notice for any or no reason. We also reserve the right, at our sole discretion, to discontinue any Service or modify any Service without notice, at any time, and without liability. We reserve the right, at our sole discretion, to terminate Services to you, and to deactivate your User Account, if applicable. We shall not be liable to you or any third party if we terminate your User Account and you agree to hold us harmless and indemnify us from any third-party claims arising from the termination of your account. You agree that any material breach of this Agreement will result in irreparable harm to Fitness Center for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Fitness Center will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Fitness Center seeks such an injunction.
You may find links to other Internet sites or resources on the Website, Mobile Application, the Website Content, or the Services. You acknowledge and agree that Fitness Center is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any of the Website Content, advertising, products, or other materials on or available from such sites or resources. Fitness Center will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any such Website Content, goods or services available on or through any such site or resource.
If you have a comment or question about this Agreement, please contact us at the contact information listed below:
Avera McKennan Fitness Center
3400 S. Southeastern Ave.
Sioux Falls, SD 57103
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Saturday 7:00 am - 5:00 pm
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Avera McKennan Fitness Center - 3400 S. Southeastern Ave. - Sioux Falls, South Dakota - 57103 - 605-322-5300
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