– All membership payments are set up on auto renewal every 30 days after sign up.
– Must have a 30 day cancellation before last payment
BEFORE YOU USE THE SERVICE SUBJECT TO THESE TERMS OF SERVICE (THE “AGREEMENT”), PLEASE READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN FitKC LLC. (“OUR”, “US”, “WE”, THE “COMPANY” OR “FitKC”), AND YOU (“YOU”, “YOUR” OR “YOURSELF”) WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED SUBSCRIPTION MANAGEMENT AND BILLING MEMBERSHIP SERVICE. YOUR USE OF THE SERVICE (AS DEFINED BELOW) IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY THAT YOU REPRESENT (“YOU”, “YOUR”, OR “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS OF SERVICE (TOGETHER WITH ANY ADDITIONAL TERMS ON SUCH ORDER FORM, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. FitKC Service
A. You are granted a nonexclusive right during the Term (as defined below) to use the FitKC Service (the “Service”) subject to the terms, conditions and restrictions set forth in this Agreement and any other restrictions stipulated to you by us in writing.
B. You agree to pay for the Service in accordance with our service fees, as further set forth below.
C. FitKC may revise its fees upon 30 days prior notice.
D. FitKC uses a 3rd party service to store a protected copy of credit card numbers of your users. This billing data belongs to you (and your customers) and by utilizing the Service, you grant FitKC a license to use this data for the purposes of fulfilling our Service obligations to you and FitKC shall otherwise use commercially reasonable efforts to keep such information confidential and secure in accordance with general industry standards.
E. Following any termination or expiration of this Agreement or your FitKC membership account, FitKC will retain a copy of your billing data for a period of thirty (30) days. You acknowledge and agree that (i) you are solely responsible for exporting a copy of your billing data prior to any such termination or expiration, and (ii) if you require access to such data following any such termination or expiration, you may be required to pay professional service fees to FitKC to retrieve such data.
2. Term and Termination
The term of this Agreement (the “Term”) shall commence as of the date you first register for, access or use of the Service, and shall continue until terminated as set forth below. You may terminate this Agreement at any time by notifying FitKC that you wish to terminate your account. FitKC may terminate this Agreement at any time, for any reason or no reason (including, without limitation, for your breach of this Agreement, violation of applicable law, or violation of card association rules or regulations). Upon any termination of this Agreement, any amounts owed to FitKC which accrued prior to such termination will become immediately due and payable.
3. Modifications to Agreement or Service
FitKC reserves the right to amend or modify this Agreement at any time, but if we do, we will bring it to your attention by placing a notice on the Service, by sending you an email and/or by some other means. If you don’t agree with the amended or modified Agreement, you are free to reject it; but you will no longer be able to use the Services. If you use the Services in any way after a change to this Agreement is effective, that means you agree to all of the changes. Except for changes to this Agreement made by FitKC in accordance with this section, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and FitKC.
FitKC may change, suspend, or discontinue all or any part of the Service at any time, with or without reason (including, without limitation, for any nonpayment of any fees due hereunder). You acknowledge that the operation of the Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and FitKC shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. FitKC has no obligation to continue producing or releasing new versions of the Service.
4. Registration and Payment Terms.
A. You agree to use the Service only through your website or software application that you own and control (the “Site”) and we reserve approval authority as to the implementation and use of the Service on the Site. We may suspend or rate limit the Service in the event we find any implementation issues with the Site. Such suspension or limitation shall remain in effect until you correct any issues specified by FitKC and a suspension or rate limitation shall not relieve you of your payment obligations under the Agreement.
B. You agree to provide us with current, complete and accurate registration information as prompted by the Service registration process and to maintain and properly update such information (“Registration Data”). Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as “IDs”). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
C. FitKC will submit your payment information. Monthly charges for the Service will be at the rates set forth by Service type and agreed upon by you in the Registration process. Unless otherwise specified on the Services, any fees which are calculated as a percentage of customer billings shall be calculated based on gross billings (i.e., following the addition of any sales or similar taxes that are applicable to such billings). Such charges may be modified by FitKC upon thirty (30) days prior written notice. Payments reflecting charges for the prior month’s use of the Service will be billed by FitKC and deducted from your authorized credit card promptly following the end of each calendar month, or shall otherwise be due and payable in accordance with FitKC’s then-current payment policies. Prices established in this Agreement, and in any schedule, exhibit or related agreement hereto, are exclusive of taxes and other fees which may be imposed on FitKC or you for the provision or use of the Service. You will be responsible for such taxes and other fees. If you fail to pay any fees due hereunder, FitKC may suspend your access to the Service.
5. Service Use and Limitations.
A. We will make reasonable efforts to keep the Service operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will use reasonable efforts to provide at least 72 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
B. FitKC is a subscription management and billing software service. You acknowledge and agree that.
C. You represent, warrant and agree that you will only use the Service in compliance with all applicable laws and regulations, and that you will not use the Service to violate, infringe, or misappropriate any intellectual property or other proprietary right of any third party (including, without limitation, any rights of privacy or publicity).
7. Proprietary Rights
A. Any text, images, or other audiovisual information posted on the Service by a user (collectively, “User Content”) shall belong to the user that posted such User Content. You may use any User Content posted by you in any other way without restriction. You may only use User Content posted by others in the ways described in this Agreement.
B. In order to operate the Service, FitKC needs the right to make certain uses of your publicly posted User Content (for example, you may provide FitKC with User Content to enable us to send communications on your behalf to your customers regarding their subscription billing).
C. FitKC reserves the right to remove any content (including, without limitation, User Content) from the service, at its sole discretion.
4066 Indian Creek Pkwy
Overland Park, KS
8. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
FitKC MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER PAYWHIRL’S CONTROL (SUCH AS A THIRD PARTY SERVERS).
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
9. Limitation of Liability
EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID (OR PAYABLE) BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
FitKC may assign these Terms of Service in whole or part at any time.
Any notice required or permitted in this Agreement shall be sent via email (and shall be deemed to have been duly given upon