Terms and Conditions
Perky Athletics Ltd.
TERMS AND CONDITIONS
1. Contractual Relationship
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Perky. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Perky may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. Please print and keep a copy of these Terms for your records. By accessing this website or using any Services, you consent to receipt of these Terms electronically.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Perky may amend the Terms related to the Services from time to time. Amendments will be effective upon Perky’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended. It is your obligation to review the Terms and any supplemental terms and to become aware of any modifications.
2. The Services
The Services constitute a technology platform that enables users of Perky’s mobile application(s) or website(s) provided as part of the Services (each, an “Application”) to arrange and schedule fitness classes, personal training sessions and/or other fitness related coaching services with independent third party providers of such services (“Third Party Providers”). Unless otherwise agreed by Perky in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT PERKY DOES NOT PROVIDE FITNESS CLASSES, PERSONAL TRAINING OR OTHER FITNESS RELATED COACHING SERVICES AND THAT ALL SUCH FITNESS CLASSES, PERSONAL TRAINING OR COACHING SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY PERKY OR ANY OF ITS AFFILIATES.
Subject to your compliance with these Terms, Perky grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Perky.
You may not:
(i) remove any copyright, trademark or other proprietary notices from any portion of the Services;
(ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Perky;
(iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law;
(iv) link to, mirror or frame any portion of the Services;
(v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or
(vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Third Party Services and Content.
The Services may contain links to third party or external websites that are not owned or controlled by Perky. When you access third party websites, you do so at your own risk. You acknowledge and agree that Perky is not responsible for the availability of any external websites or resources, and does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or services, or other materials on or available from such websites or resources. Your correspondence or business dealings with, or participation in promotions of, third parties found in or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party.
You understand and agree that your use of external links may result in harmful or unwanted content or malicious software infecting or interacting with your computer or mobile device. You accept all risk in connection with such external links, and you agree that Perky shall have no responsibility to you in the event your computer or mobile device is affected in any way by your use of external links.
Furthermore, any such external link should not be construed as meaning that a special relationship, such as a business partnership, exists between Perky and the party running the third party website. Nothing in these Terms or your use of this website grants you any rights or authorizations with respect to any external links or websites.
The Services and all rights therein are and shall remain Perky’s property. Neither these Terms nor your use of the Services convey or grant to you any rights:
(i) in or related to the Services except for the limited license granted above; or
(ii) to use or reference in any manner Perky’s company names, logos, product and service names, trademarks or services marks unless expressed approved by Perky in writing.
This website is protected by Canadian, U.S. and international copyright laws. Except for your use as authorized herein, you may not modify, reproduce or distribute the content, design or layout of this website or individual sections of the content, design or layout of this website without Perky’s express prior written permission. The Services contain information which is proprietary to us, our partners, and our users. We assert full copyright protection in the Services. Information posted by us, our partners or users of the Services may be protected whether or not it is identified as proprietary to us or to them. You agree not to modify, copy or distribute any such information in any manner whatsoever without having first received the express written permission of the owner of such information.
3. Your Use of the Services Eligibility.
This website and the Services are not directed toward children less than 13 years of age nor does Perky knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to this website or through the Services.
By visiting this website or accepting these Terms, you represent and warrant to Perky that you:
(i) will use this website and the Services in a manner consistent with any and all applicable laws and regulations; and
(ii) have not been convicted of any felony or indictable offence, and are not required to register as a sex offender with any government authority.
These Terms and your use of the Services constitute your agreement with Perky with respect to your use of the Services. You must abide by all of the terms and conditions of this agreement in order to become or remain an authorized user of the Services.
In order to use most aspects of the Services, you must register for and maintain an active personal user account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Perky certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services and/or Perky’s termination of the above limited license to you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Perky in writing, you may only possess one Account. You agree to immediately notify Perky of any unauthorized use of your username or password or any unauthorized access to your Account. For your own security, it is advisable to log out when you finish each use of the Services, especially if you are using a public computer or share a computer with others. When logging into the Services using a public computer please use caution to prevent other people from learning your username and password.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive fitness classes, personal training or other fitness coaching services from Third Party Providers. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
You will not use the Services to distribute or upload any virus, or malicious software of any type, or do anything else that might cause harm to the Services, this website, Perky, its systems, or any other members' systems in any way.
You will not cause the Services to be accessed through any automated or robotic means, including but not limited to the rapid access of the site as in a denial-of-service attack. Such restriction shall not apply to legitimate search engine activity that does not place an unreasonable burden on the Services.
Perky may, in Perky’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that Perky establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes:
(i) must be used for the intended audience and purpose, and in a lawful manner;
(ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Perky;
(iii) may be disabled by Perky at any time for any reason without liability to Perky;
(iv) may only be used pursuant to the specific terms that Perky establishes for such Promo Code and may not be combined unless expressly permitted by Perky;
(v) are not valid for cash;
(vi) may expire prior to your use. Perky reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Perky determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
User Provided Content.
Perky may, in Perky’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Perky through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Perky, you grant Perky a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Perky’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Perky the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Perky’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. [NTD: can you confirm that users will not have the ability to post to chatrooms or make any other posts to the website that will be viewable by other users? If users will have this ability, we need to include terms and conditions prohibiting such conduct, as well as to reserve broad rights with respect to enforcing these prohibitions and restrictions for Perky. You also need to include Digital Millennium Copyright Notice here.]
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Perky in its sole discretion, whether or not such material may be protected by law. Perky may, but shall not be obligated to, review, monitor, or remove User Content, at Perky’s sole discretion and at any time and for any reason, without notice to you.
You will not use the Services to distribute, promote or otherwise publish any material containing any solicitation for funds, advertising or solicitation for goods or services. You agree to pay Perky Two Thousand Dollars (CAD $2000.00) per account involved with such activities to cover expenses involved with investigation and prosecution of such activities.
Publication or use of any User Content by Perky is at the sole discretion of Perky and Perky is under no obligation to publish or use any User Content. If your User Content is published, used and/or posted on this website or otherwise used by Perky, we may include your name, likeness, photo or biographical information in conjunction with such publication, posting, or use. By submitting, disclosing, or offering any User Content, you hereby grant Perky the right to use your name in connection with the publication, use or posting of your User Content.
Interaction with Other Users
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS OR USERS OF THIS WEBSITE. YOU UNDERSTAND THAT PERKY CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS OR USERS. PERKY ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS MEMBERS OR USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS MEMBERS OR USERS. PERKY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. PERKY RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
IN NO EVENT SHALL PERKY BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, THEFT, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS WITH OTHER REGISTERED USERS OF THE SERVICES. YOU SHOULD NOT PROVIDE YOUR FINANCIAL INFORMATION (FOR EXAMPLE, YOUR CREDIT CARD OR BANK ACCOUNT INFORMATION) TO OTHER MEMBERS OR USERS.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Perky does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the Services rendered by Perky and for goods or services you receive from a Third Party Provider (“Charges”). Perky reserves the right to increase or decrease Charges applicable to the Services from time to time and without prior notice.
All Charges are due immediately upon booking the Services and payment will be facilitated by Perky using the preferred payment method designated in your Account, after which Perky will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Perky may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available. After you have received services or goods obtained through your use of the Services, Perky will facilitate your payment of the applicable Charges on behalf of the Third Party Provider as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider and to Perky, as the case may be. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Perky. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. Perky will respond accordingly to any request from a Third Party Provider to modify the applicable Charges for a particular service or good.
Perky will use reasonable efforts to inform you of all Charges that may apply and may, from time to time, provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time within four (4) hours prior to such Third Party Provider’s provision of services, otherwise you may be charged a cancellation fee.
You shall be responsible for the cost of repair for damage to the Third Party Provider’s property resulting from use of the Services under your Account in excess of normal “wear and tear” damages (“Repair”). In the event that a Third Party Provider reports the need for Repair and such Repair request is verified by Perky in Perky’s reasonable discretion, Perky reserves the right to, but is not required to, facilitate payment for the reasonable cost of such Repair on behalf of the Third Party Provider using your payment method designated in your Account. Such amounts will be transferred by Perky to the applicable Third Party Provider and are non-refundable.
5. Disclaimers; Limitation of Liability; Indemnity.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PERKY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, PERKY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. PERKY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
From time to time, Perky may make third party opinions, advice, statements, offers, or other third party information or content available through the Services. All third party content is the responsibility of the respective authors thereof and should not necessarily be relied upon. Such third party authors are solely responsible for such content. Perky does not: (i) guarantee the accuracy, completeness, or usefulness of any third party content provided through the Services, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears in the Services. Under no circumstances will Perky or its affiliates be responsible or liable for any loss or damage resulting from your reliance on information or other content posted in the Services, or transmitted to or by any users.
In addition to the preceding paragraph and other provisions of these Terms, any advice that may be posted in the Services is for informational and entertainment purposes only and is not intended to replace or substitute for any professional financial, medical, legal, or other advice. Perky makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Services. If you have specific concerns or a situation arises in which you require professional or medical advice, you should consult with an appropriately trained and qualified specialist.
LIMITATION OF LIABILITY.
PERKY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF PERKY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PERKY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF PERKY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PERKY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND PERKY’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
PERKY’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE FITNESS CLASSES, PERSONAL TRAINING OR OTHER FITNESS RELATED COACHING SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT PERKY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY FITNESS CLASSES, PERSONAL TRAINING OR OTHER FITNESS RELATED COACHING SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
In no event shall Perky, its affiliates or its partners be liable (directly or indirectly) for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Services including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other users or persons you meet through the Services. You agree to take all necessary precautions in all interactions with other users, particularly if you decide to communicate off the Services or meet in person, or if you decide to send money to another user. You understand that Perky makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Services. You should not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other users.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. SOME JURISDICTIONS LIMIT THE AVAILABILITY OF SUCH LIMITATION OF LIABILITY, IN WHICH CASE THE PROVISIONS OF THIS SECTION MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL OUR LIABILITY EXCEED THE SUM OF FIFTY CANADIAN DOLLARS ($50.00).
You agree to indemnify and hold Perky and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including legal fees) arising out of or in connection with:
(i) your use of the Services or services or goods obtained through your use of the Services;
(ii) your breach or violation of any of these Terms;
(iii) Perky’s use of your User Content; or
(iv) your violation of the rights of any third party, including Third Party Providers.
This website and the Services are controlled and operated by Perky in Canada. Perky makes no representation that materials in this website are appropriate or available for use in other locations, and access to this website and Services from territories where their contents thereof are illegal is not authorized. Those who choose to access this website and/or the Services from locations outside Canada do so on their own initiative and are responsible for compliance with applicable local laws.
6. Governing Law.
Except as otherwise set forth in these Terms, these Terms shall be governed by and construed in accordance with the laws in force in the province of Alberta and the federal laws of Canada, as applicable. The courts of Alberta shall have exclusive jurisdiction over all claims, disputes and actions arising out of and related to you and these Terms and the parties hereby attorn to the jurisdiction of Alberta courts.
Perky may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent to your address as set forth in your Account.
You may not assign or transfer these Terms in whole or in part without Perky’s prior written approval. You give your approval to Perky for it to assign or transfer these Terms in whole or in part, including to:
(i) a subsidiary or affiliate;
(ii) an acquirer of Perky’s equity, business or assets;
(iii) a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, Perky or any Third Party Provider as a result of the contract between you and Perky or use of the Services.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”
Last Updated: May 12 2018