General Terms and Conditions
Welcome to GymAround.nl, (the “Site”). The Site is operated by ITHAKA Holding BV, a Dutch corporation and/or our subsidiaries (hereafter referred to as “GymAround” “we,” “us,” or “our”). We provide our Site as a venue for international (business) travelers, to facilitate and introduce Fitness Clubs and Wellness Centers (the “Club”) to the users and members in order to buy a day pass for a visit to the respected Club (our Site and the foregoing services referred to herein collectively as our "Service"). Our Service is offered to you conditioned upon your acceptance without modification of all of the terms, conditions, and notices set forth below (collectively, the “Agreement”). By accessing or using this Site in any manner, you agree to be bound by this Agreement. If you do not accept all of these terms and conditions, you may not use this Site or the Services. We reserve the right at any time, at our sole discretion, to change or otherwise modify the Agreement. If the Agreement is changed or modified, we will post on our Site a notice that revisions to the Agreement have been made or we may notify you via email or other means. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Site by you following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
1. PURPOSE OF OUR SITE AND SERVICES. Our Site and Service is provided to you as a venue to introduce users and Clubs to each other for the purpose of the users buying a day pass and visiting the Club. As a result, the conduct of our users, the truth or accuracy of the information that Clubs post on the Site (including facilities, opening hours and price) and the quality, safety or legality of the Club itself advertised, are solely the responsibility of the Club.
2. USE OF THE WEBSITE AND SERVICES. As a condition of your use of this Site and our Services, you represent and warrant that (i) you are at least 18 years of age, (ii) you possess the legal authority to create a binding legal obligation, (iii) you will use this Site and our Services in accordance with this Agreement, and the Host Agreement and/or Guest Agreement respectively, which will be made available to you through the booking process, as applicable, (iv) you will only use this Site and our Services to make legitimate selling or buysing for yourself or for another person for whom you are legally authorized to act, (v) all information supplied by you on this Site is true, accurate, current and complete, and (vi) you will safeguard your password and/or account information and will supervise and be completely responsible for any use of your password and/or account by anyone other than you. We retain the right at our sole discretion to deny access to anyone to this Site and our Services, at any time and for any reason, including, but not limited to, for violation of this Agreement. We may, in our discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, any portion of our Services.
3. YOUR CONDUCT ON THIS SITE. You are solely responsible for your interactions with other users of our Services. We will not be responsible for any damage or harm resulting from your interactions with other users of our Services. We reserve the right, but have no obligation, to monitor interactions and/or disputes between you and other users of our Services and to take any other action in good faith to restrict access to or the availability of any material that we or another user of our Services may consider obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable.
4. RELEASE. By using the Site or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users will be limited to a claim against the particular user or users who caused you harm. You agree not to attempt to impose liability on, or seek any legal remedy from GymAround or any of its affiliates or their respective shareholders, officers, directors, employees or agents. You hereby agree to release GymAround and its affiliates and each of their respective directors, officers, shareholders, employees and agents from any and all manner of claims, demands, damages (actual, consequential, nominal, punitive, or otherwise), liabilities, obligations, physical harm, legal fees, costs, disbursements, equitable relief, and any other legal, equitable, and administrative remedy, of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, past, present, or future, arising out of or in any way connected with your use of the Services or the communication or interaction with other users on the Site or your experience as a guest or host in connection with this Site. If you are a California resident, you waive California Civil Code Section 1542 which says “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the Release which if known by him must have materially affected his settlement with the debtor.”
5. SITE RULES AND REGULATIONS. In connection with your use of our Services, you must act responsibly and exercise good judgment. Without limiting the foregoing, you will not:
(a) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Services;
(b) post, upload, publish, display, transmit, share, store or otherwise make or attempt to make publicly available in any website, email, blog, forum, medium or other communication of any kind, any private or personally identifiable information of any other user of this Site, including, without limitation, names, addresses, phone numbers, email addresses, driver's license numbers, or bank account or credit card numbers without the express permission of GymAround according to is policies,
(c) violate any local, provincial, state, provincial, federal or other law or regulation, or any order of a court;
(d) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights, including but not limited to reselling a Day pass without the rights to do so;
(e) interfere with or damage our Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
(f) Use any robot, spider, other automatic device, or manual process to monitor, copy, or keep a database copy of the content or any portion of the Site;
(g) Reverse engineer any part of this Site;
(h) use our Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(i) use our Services in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to fitness or general health;
(j) "stalk" or harass any other user of our Services or collect or store any information about any other user other than for purposes of transacting as an GymAround guest and host with one another;
(k) use automated scripts to collect information or otherwise interact with the Service or the Site;
(l) use the Site to find a Club and then complete the transaction offline in order to circumvent your obligation to pay for the Service; or
(m) advocate, encourage, or assist any third party in doing any of the foregoing.
The foregoing is merely a list of examples of prohibited conduct. We reserve the right to cancel a member account or take other appropriate actions in its sole discretion in response to any inappropriate conduct, or for no reason at all.
6. ADDITIONAL TERMS AND CONDITIONS. Additional terms and conditions will apply when you register as a member of this Site, and during the process of booking or buying a day pass, as applicable. Please ensure that you read these separate terms and conditions carefully.
7. MINORS MAY NOT USE SERVICES. You must be at least 18 years old to register to use the Services. By registering to use our Services, you represent that you are over 18. This Site is not intended for use by minors.
9. USER NAME AND PASSWORD. You will select a username and password as part of the registration process. You are solely responsible for the confidentiality and use of your username and password. You must: (a) log off from your account at the end of each session on our Site; and (b) notify us immediately of any unauthorized use of your username and password or any other breach of security.
10. DATA TRANSMITTAL. Each user acknowledges and agrees that, regardless of such user's physical location, we may store and process any data transmitted to the Site from such user at locations worldwide.
11. YOUR CONTENT. By submitting any content which shall include without limitation any Club listings, additional facilities listings, photographs, Club reviews, questions, comments, suggestions, ideas or the like contained in any submissions (collectively, “Submissions”) to our Site, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, display, perform, adapt, modify, sell, distribute, have distributed and promote your Submissions in any form, in all media now known or hereinafter created for the purpose of providing the Services. You represent and warrant that you have sufficient rights to grant us this license. You acknowledge and agree that Submissions are non-confidential and non-proprietary. We take no responsibility and assume no liability for any Submissions posted or submitted by you. We have no obligation to post your comments; we reserve the right in our absolute discretion to determine which comments are published on the Site. If you do not agree to these terms and conditions, please do not provide us with any Submissions. You are fully responsible for the content of your Submissions. You are prohibited from posting or transmitting to or from this Site: (i) any unlawful, discriminatory, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity and/or privacy or that would violate any law; (ii) any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or services); and (iii) any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other proprietary right of any third party. You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to this Website. You acknowledge that we may exercise our rights (e.g. use, publish, delete) to any content you submit without notice to you.
12. THIRD PARTY CONTENT. In using our Services, you may be exposed to content and information from other members or third parties ("Third-Party Content"), either at our Site or through links to third-party websites. We do not control, and shall have no responsibility for, Third-Party Content, including material that may be unlawful, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You must evaluate the veracity of, and bear all risks associated with your exposure to, Third-Party Content, including without limitation, profiles of other users of our Services.
13. FEES AND PAYMENT. We do not charge users to access, browse or research Club listings on the Site. In connection with each members use of a listed Club at a listed Club (“day pass”), the Club will pay GymAround its then-current service fee (“Service Fee”) as listed on the first page of the booking wizard and based on the price agreed to between the member and the Club for the Day pass (“Day pass Fee”). The Day pass Fee will include our Service Fee. ??The guest will be charged the full price of a day pass upon redemption of the access code at the respected Club .We will hold the Day pass Fee as a convenience to Clubs. Payments to Clubs will be made regularly, and members will be charged on their creditcard immediately after redemption of the Access code. All payments to Clubs will be paid after deducting our Service Fee. Additional terms relating to payment, cancellations, reconciliations and refunds are set out in the Club Agreement and Members Agreement respectively.
14. PROPRIETARY RIGHTS. Any material or information on our Site (with the exception of Third-Party Content), including without limitation all text, data, design, source code, photos and images (“Our Content”) is protected by rights of publicity, copyright, trademark, trade secret, and other proprietary rights and intellectual property laws as applicable. Except as expressly authorized by us, you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such material. “GymAround,”, The “GymAround logo” and “www.GymAround.nl,” are trademarks of ITHAKA Holding protected by federal and local laws; you agree not to use such marks for any purpose, including but not limited to as metatags on other websites, in written materials or otherwise.
You may not modify, participate in the sale or transfer of, or create derivative works based on any of Our Content, in whole or in part. The use of Our Content on any other website, including by linking or framing, or in any networked computer environment for any purpose, is prohibited without our prior written approval. You also may not, without our express written permission, "mirror" any material contained on this Site on any other server. Any unauthorized use of any Content on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications statutes and regulations.
15. TERMINATION. We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate your access to our Services, (b) deactivate or delete any of your accounts and all related information and files in such accounts and (c) bar your access to any of such files or Services. Upon termination we will promptly pay you any hosting fees held in escrow and due to you, less our Services Fee.
16. DISCLAIMER OF WARRANTIES
IF YOU USE OUR SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT GYMAROUND DOES NOT CHECK ANY GUEST, CLUB, OR OTHER USER’S BACKGROUND OR RECORD. GYMAROUND IS A REPUTATION-BASED SYSTEM. PLEASE TAKE ADVANTAGE OF OTHER USER’S COMMENTS AND THIRD-PARTY REFERRALS ON CLUBS. USE COMMON SENSE. BE AWARE AND BE SAFE. OUR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT ANY WARRANTIES OF ANY KIND. WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT (A) OUR SERVICES WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN THROUGH OUR SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES WILL MEET YOUR EXPECTATIONS; OR (E) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF SUCH ACCESS OR TRANSMISSION. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN AGREEMENT.
YOU ACKNOWLEDGE THAT ANY TRANSMISSION TO AND FROM THIS SITE IS NOT CONFIDENTIAL AND YOUR COMMUNICATIONS MAY BE READ OR INTERCEPTED BY OTHERS. YOU ACKNOWLEDGE THAT BY SUBMITTING COMMUNICATIONS TO US AND BY POSTING INFORMATION ON THE SITE, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO THESE TERMS
17. LIMITS ON LIABILITY
17.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING TO: (A) THE USE OR INABILITY TO USE OUR SERVICES; (B) HARM OR DAMAGE TO YOUR PROPERTY AS A RESULT OF USING OUR SERVICES; (C) FHYSICAL DAMAGE, RESULTING FROM USING ANY APPERATUS OR EVEN SOLELY VISITING THE CLUB; (D) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (E) ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OR ANY HARM TO YOU CAUSED IN WHOLE OR PART BY A THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANOTHER USER OF THE SERVICES; (F) STATEMENTS, CONDUCT OR OMISSIONS OF ANY GUEST, HOST, OR OTHER THIRD PARTIES ON OUR SERVICES; OR (G) YOUR OR ANYONE ELSE'S CONDUCT OR ACTS IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION FROM INTERACTIONS WITH OTHER USERS OF OUR SERVICES OR PERSONS INTRODUCED TO YOU BY OUR SERVICES, WHETHER ON-LINE OR OFF-LINE. WE SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER AGREEMENT DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF NATURE AND POWER, INTERNET, AND EMAIL DISCONTINUITY. IF YOU ARE DISSATISFIED WITH THE SITE OR SERVICES, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US, ANOTHER USER OR THE SITE WITH RESPECT TO THESE TERMS OR THE SITE, THEN YOUR SOLE AND EXCLUSIVE REMEDY AGAINST US IS TO DISCONTINUE USING THE SITE AND SERVICES.
17.2 THE FOREGOING LIMITATIONS SET FORTH IN THIS SECTION AND THE DISCLAIMERS SET FORTH IN SECTION 16 APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO THE LOSS, DAMAGE, CLAIM OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE, CLAIM OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS, STRICT LIABILITY, BREACH OF CONTRACT INCLUDING, WITHOUT LIMITATION, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM, PRODUCT LIABILITY OR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADE-MARK OR OTHER INTELLECTUAL PROPERTY RIGHT.
18. INDEMNITY. You shall indemnify and hold us, our affiliates and respective shareholders, officers, directors, employees and agents harmless from any third-party claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys' fees, arising out or relating to your use of our Services or alleging facts or circumstances that, if true, could constitute your breach of any of the terms of this Agreement. We will control any such defense and related settlement and you will reasonably assist us therewith at your expense.
19. GOVERNING LAW. These terms and conditions and the provision of our services shall be governed by and construed in accordance with Dutch law and any dispute arising out of these general terms and conditions and our services shall exclusively be submitted to the competent courts in Amsterdam, the Netherlands.
20. NO AGENCY. Our relationship is that of independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relations is intended or created by this Agreement or your use of the Site or Service.
21. MISCELLANEOUS . This Agreement contains the entire agreement, and supersede all prior and contemporaneous understandings between the parties. Our failure or delay in exercising any right, power or privilege under Agreement shall not operate as a waiver thereof. The invalidity or unenforceability of any of Agreement shall not affect the validity or enforceability of any other the terms contained herein, all of which shall remain in full force and effect. We may assign our rights and delegate our obligations under Agreement in whole or part to a third party. Sections 3, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive any termination or expiration of this Agreement.
Unless stated otherwise, the software required for our services or available at or used by our website and the intellectual property rights (including the copyrights) of the contents and information of and material on our website are owned by ITHAKA Holding, its suppliers or providers.
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