These terms and conditions, together with any document they expressly incorporate by reference (the “Terms and Conditions”), constitute a legally binding contract between you, as the person using the Program (the “Participant”), and Retrofit Inc. (“Retrofit”, “we”, or “us”) and governs your use of the Program (as defined below). Read the Terms and Conditions carefully before continuing. BY CHECKING THE “I AGREE” BOX FOR ACCOUNT SET UP, YOU CERTIFY THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND YOU INDICATE YOUR ACCEPTANCE OF ALL OF THESE TERMS AND CONDITIONS, INCLUDING THOSE OF SECTIONS 3 AND 8, REGARDING YOUR ASSUMPTION OF RISK AND THE LIMITATION OF RETROFIT’S LIABILITY. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS AND CONDITIONS, DO NOT CLICK THE “I AGREE” BOX.
We may make changes to the Terms and Conditions from time to time at our sole discretion. All changes are effective immediately when we post them. Your continued use of the Program, following the posting of such changes means that you accept and agree to the changes. You should check this page from time to time so that you are aware of any changes to the Terms and Conditions, as they are binding to you. If we propose to make any significant change to the arbitration provision included in these Terms and Conditions, you will receive notice of such proposed change and will be given an opportunity to discontinue your use of the Program before such change becomes effective.
Capitalized terms used in these Terms and Conditions have the meaning ascribed to them in this Section.
“Acceptance Date” means the date you indicate your acceptance of these Terms and Conditions.
“Confirmation Email” means any e-mails to you from Retrofit (i) providing instruction on the
Program; (ii) confirming your Plan selection, participation in the Program, and/or purchase of a Program; and/or (iii) setting forth any specific terms, conditions, or requirements for a particular Program or Plan.
“Customer” means the party who has arranged and/or agreed to pay for the Program provided by Retrofit in accordance with the terms of a Customer Agreement. The Customer may be an individual Participant who has contracted directly with Retrofit for his or her own use of the Program (an “Individual Customer”) or it may be the Participant’s employer, health plan or health care provider, which has contracted with Retrofit to provide a Program for multiple Participants (a “Group Customer”).
“Customer Agreement” means the agreement between Retrofit and the Customer for the Program provided by Retrofit.
“Documentation” means, collectively, all Participant guides, protocols, Plans, Confirmation Emails, and other reference materials generally furnished by Retrofit with respect to the Program, whether in printed or electronic format, as may be updated by Retrofit from time to time.
“Participant Data” means the data about you that Retrofit gathers in the course of providing the Program, including your physical characteristics, eating habits and caloric intake, sleeping habits, changes in weight, and progress with respect to exercises and activities. “Participant Data” also includes recordings of videoconferences or telephone conversations and any information that you post on the Retrofit-operated website or any Retrofit-affiliated electronic interface at any time before, during or after your participation in the Program.
“Plan” means one or more packages of a defined set of benefits comprising the Program.
“Program” means Retrofit’s internet-based weight loss and weight management program, which is delivered in one or more Plans.
“Program Fee” means, as set forth in the Plan, Customer Agreement and/or any Confirmation Email, the charge to the Customer for Programs provided by Retrofit.
“Proprietary Information” means all non-public business or technical information or materials disclosed to you by Retrofit or any Wellness Professional, including the Documentation, any method of carrying out or delivering the Program, and any pricing or commercial terms related to the Program, including the price paid for the Plan and Program.
“Retrofit Gear” means, collectively, the scale, wireless activity tracker, heart rate monitor, mobile application, and/or any other equipment provided by Retrofit to you as part of the Plan and Program.
“Site” means the Retrofit-operated website through which the Program is made available to you.
“Subsidiary” means any entity controlling, controlled by, or under common control of Retrofit.
“Wellness Professional” means an independent contractor or employee of Retrofit who has been engaged or assigned by Retrofit to consult with and make recommendations to Retrofit’s Participants as part of the Program.
“Weight Loss Goal” means your specific weight loss program percentage as defined in the Plan or such other agreed upon weight loss percentage that would not drive your weight below a healthy weight range.
2. Use of the Program.
2.1 General. Subject to and during the term of these Terms and Conditions, Retrofit grants you a non-exclusive and non-transferable right to access and use the Program in accordance with these Terms and Conditions, a specific Plan, and any Documentation made available to you by Retrofit. The Program has been designed by Retrofit with the goal of assisting people who are overweight or who have pre-diabetes with weight loss, weight management and/or disease prevention. You agree that, in order to increase the probability of success in your efforts to lose or manage your weight or reduce your risk of disease, you must at a minimum: (a) follow Retrofit’s protocol, as provided in any Documentation, to the best of your ability; (b) complete all recommended appointments or other sessions with your Wellness Professionals; (c) unless not provided in your Plan, weigh yourself on the Retrofit-provided scale every day while not traveling; and (d) unless not provided in your Plan, carry or wear the Retrofit-provided wireless activity tracker at all times. EVEN IF YOU CARRY OUT THE FOREGOING REQUIREMENTS, YOU UNDERSTAND AND AGREE THAT INDIVIDUAL RESULTS VARY, AND THAT RETROFIT DOES NOT GUARANTEE WEIGHT LOSS OR DISEASE PREVENTION. You also understand and agree that we may, but we are not obligated to, modify the Program, Plan, and the Documentation for a variety of reasons, including for consistency with the most recent weight loss and weight management research. Your specific Weight Loss Goal will be modified to a lower agreed upon weight loss percentage if your weight loss would drive your weight below a healthy weight range.
2.2 Wellness Professionals. As part of the Plan and Program, Retrofit will provide you with individual or group access to Wellness Professionals, who will consult with you by videoconference or telephone. You agree to work with your Wellness Professionals in good faith solely with respect to the Program, and you will not seek consultation from your Wellness Professionals for any other purpose. If you need to reschedule an individual appointment with a Wellness Professional, you agree to do so at least 24 hours in advance, or the session will be debited from your pre-paid account or charged to the account used to pay for your Plan. In addition, if you miss a scheduled individual appointment, the session will be debited from your pre-paid account or charged to the account used to pay for your Plan. You agree that the sessions with Wellness Professionals are for your own personal benefit and not for the benefit of others and that you will not allow any observers to join you, except as may be necessary to facilitate your participation in the session. You agree that you will not record any such session in any way. You also understand and agree that Retrofit may replace any Wellness Professional assigned to you at any time, with no advanced notice.
2.3 Your Health. RETROFIT IS NOT A MEDICAL ORGANIZATION. YOU SHOULD NOT CONSIDER THE PROGRAM OR THE DOCUMENTATION AS MEDICAL ADVICE OF ANY KIND, AND THE PROGRAM IS NOT INTENDED TO DIAGNOSE OR TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION. Retrofit is not a licensed medical care provider and the Programs are not medically supervised. You are urged and advised to seek the advice of a physician before beginning your use of the Program, and to get periodic medical check-ups as recommended by your primary-care physician. By using the Program, you represent that you are an adult who is healthy enough to begin a weight loss regimen that includes dieting and exercise. The Program is not intended for use by minors. If you are currently under the care of a health care professional or are living with a chronic health care condition, you represent that you have obtained the express approval from a health care professional to receive the Programs before beginning. Never disregard professional medical advice or delay in seeking it because of something you have been told by Retrofit staff or any Wellness Professional.
2.5 Restrictions. You may not: (a) license, sell, transfer, distribute, or otherwise commercially exploit or make available to any third-party, access to the Program or any of the Documentation; (b) modify or make derivative works based on the Documentation or the Site;
(c) use any robot, spider, or other automatic device or manual process to monitor or access the Site, record any interaction with a Wellness Professional, or in any way duplicate the Documentation; (d) copy any content, features, functions, or graphics of the Documentation or the Site other than in connection with your own personal use of the Program; (e) use the Site or the Program in a manner intended to abuse or violate the privacy or property rights of others; (f) tamper with or knowingly take any other action that may negatively affect the use of the Program or Documentation, or the functionality of the Site or any Retrofit Gear; (g) reverse engineer, disassemble, or decompile the Site; or (h) use the Program, Site, Documentation, or Retrofit Gear to build a competitive website or Program, or to build a product or Program using similar ideas, features, or functions.
3. You Assume All Risk In Using the Program.
Not all exercises or activities recommended by Retrofit or any of the Wellness Professionals, or otherwise made available on the Site or in the Documentation, are suitable for everyone. You understand and agree that when participating in any exercise or exercise program, there is the possibility of injury or death. As such, YOU AGREE TO USE YOUR OWN JUDGMENT AT ALL TIMES DURING YOUR USE OF THE PROGRAM IN ORDER TO DETERMINE IF ANY RECOMMENDED
EXERCISE OR ACTIVITY IS SUITABLE FOR YOU. If you feel any discomfort or pain during your use of the Program, you must immediately stop the exercise or activity causing such discomfort or pain, and dial 911 using your telephone if you need emergency help.
Retrofit will not be responsible for any health problems or injuries that you may experience as a result of receiving the Programs, including from training programs, products, or events you learn about through the Program. YOU HEREBY AGREE THAT YOUR USE OF THE PROGRAM, INCLUDING YOUR USE OF ANY EXERCISE PROGRAM RECOMMENDED BY RETROFIT OR ANY WELLNESS PROFESSIONAL, IS AT YOUR OWN RISK AND THAT YOU ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES, EVEN IF ANY ASPECT OF THE SITE OR DOCUMENTATION IS INACCURATE, INCOMPLETE, OR INAPPROPRIATE IN THE MANNER IT WAS PRESENTED.
4. Term and Termination.
4.1 Term. Unless otherwise specified in the Plan and/or a Confirmation Email, these Terms and Conditions will be effective as of the Acceptance Date and will continue for the term specified in the Confirmation Email. If set forth in the Plan and/or a Confirmation Email, you will have the opportunity to renew your participation.
4.3 Effect of Termination. Upon the termination of these Terms and Conditions, you agree to delete all copies of any Documentation in your possession or control.
4.4 Survival. Sections 2.5, 3, 4.3, 5.1, 5.3, 5.4, and 6 through 9 will survive the termination or expiration of these Terms and Conditions.
5. Program Fees.
NOTE: This Section 5 applies only to Individual Customers and does not apply to Participants whose participation in a Program is through a Group Customer. Group Customer Program Fees and payment terms are set forth in the applicable Customer Agreement.
5.1 Program Fee. The Program Fee is presented to the Customer in the Customer Agreement, Plan, and/or a Confirmation Email. Unless otherwise specified in the Customer Agreement, Plan and/or a Confirmation Email, Customer is responsible for the full Program Fee from the Acceptance Date, even if Customer stops using the Program before the end of the term.
5.2 Cancellation Fee. Unless otherwise specified in the Customer Agreement, Plan and/or a Confirmation Email, if a Customer cancels participation in any Plan prior to completing a full term, Retrofit reserves the right to charge a cancellation fee to cover the cost of any administrative expenses (including legal cost), and the cost of non-returned or damaged equipment. The cancellation fee will be charged directly to the Customer.
5.3 Promotions. Any promotion offered has no independent cash value and may not be combined with any other offers.
5.4 Taxes. Customer will be responsible for all taxes of whatever kind or nature imposed by any governmental authority upon any Programs provided hereunder, excluding taxes based upon Retrofit’s income or property.
5.5 Retrofit Promise. THERE ARE NO REFUNDS. Unless otherwise specified in the Plan and/or a Confirmation Email, if at the end of the initial 12 months on the Plan you notify us in writing that your use of the Program has not resulted in the achievement of your Weight Loss Goal (depending on which tier of the Program you have selected) or a lower agreed on goal, and you have in good faith met the requirements of the Program’s protocols (as set forth in the Documentation), and you have complied with the dietary and exercise recommendations provided to you by Retrofit and the Wellness Practitioners, Retrofit will extend participation in the same Plan to you for an additional 12 months at no charge.
6. Proprietary Rights.
6.1 Reservation of Rights by Retrofit. Retrofit is the owner or licensor of all right, title, and interest in the Program, Site, Documentation, and Retrofit Gear, including all related intellectual property and other proprietary rights therein. No rights in these items are granted to you except as expressly set forth in these Terms and Conditions. You acknowledge and agree that the Program, Site, Documentation, and Retrofit Gear, and any technology, written materials, and logos used in connection with these items, contain Retrofit’s and its licensors” intellectual property and other proprietary information, and are protected by United States and international intellectual property laws. Your infringement or misappropriation of such intellectual property and other proprietary information could expose you to both civil and criminal penalties under applicable laws.
6.2 License to Participant Data. You hereby grant, and represent and warrant that you have the right to grant, Retrofit a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual right and license to publicly perform, publicly display, reformat, translate, excerpt, distribute, create derivative works from, rearrange, store, copy, and use Participant Data in order to: (a) provide the Program to you; (b) analyze and improve the Program, Site, Documentation, and Retrofit Gear; (c) conduct research on the efficacy of the Program, Site, Documentation, and Retrofit Gear; and (d) promote, market, or advertise the Program or Site. Identifiable Participant Data will not be publicly displayed without your prior express written permission. You grant Retrofit permission to use and/or publish de-identified Participant Data (i.e., Participant Data that is made anonymous by removing your name, image and other identifiers that could foreseeably be used to identify you) as part of research studies, academic papers, and scholarly articles based any such research, as well as for analytics, product development and other purposes.
6.3 Suggestions. You hereby grant, and represent and warrant that you have the right to grant, Retrofit a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual right and license to use, copy, publicly perform, publicly display, reformat, translate, excerpt, distribute, create derivative works from, rearrange, or incorporate into the Program, Site, Documentation, and Retrofit Gear any ideas, suggestions, enhancement requests, recommendations or other feedback that you provide to us. You further represent and warrant that such license does not infringe, misappropriate or otherwise violate the rights of any third party.
7.1 Your Rights and Obligations. You may not, without Retrofit’s prior written consent: (a) use the Proprietary Information except in conjunction with your use of the Program; or (b) disclose any of the Proprietary Information to any other person. As specified in the Plan and/or any Confirmation Email, your participation in certain Plans may permit or require you to disclose your Participant Data to other Plan participants and/or to your Group Customer. If you choose to participate in these Plans and to make your Participant Data available, other Plan participants and/or your Group Customer will not be under a duty of confidentiality with respect to such information.
7.3 Authorization to Share Participant Data with Health Care Provider. If your Group Customer is a health care provider, Retrofit may need to obtain information about you from, and share information about you with, your healthcare provider. You will be asked to complete an Authorization to Communicate with Healthcare Providers.
8. No Warranties; Limitation of Liability; Indemnification.
8.1 Disclaimer of Warranties. THE PROGRAM, SITE, DOCUMENTATION, AND RETROFIT GEAR ARE PROVIDED BY RETROFIT AND ITS SUPPLIERS STRICTLY ON AN “AS IS”, WITH ALL FAULTS, AND “AS AVAILABLE” BASIS. RETROFIT, ITS SUPPLIERS, ALL THIRD-PARTIES, IF ANY, PROVIDING CONTENT FOR THE PROGRAM, SITE, AND DOCUMENTATION, AND ALL THIRD-PARTIES
PROVIDING SUPPORT OR INFORMATION FOR THE PROGRAM, SITE, OR DOCUMENTATION
INCLUDING, WITHOUT LIMITATION, GROUP CUSTOMERS (COLLECTIVELY, THE “PROGRAM RELATED THIRD-PARTIES”) DO NOT REPRESENT OR WARRANT THAT THE PROGRAM OR ACCESS
TO THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER RETROFIT NOR THE PROGRAM-RELATED THIRD PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
8.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER RETROFIT NOR ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, AND THE PROGRAM-RELATED THIRD PARTIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS PROFESSIONALS), SHALL BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OR INABILITY TO USE THE PROGRAM OR SITE OR YOUR RELIANCE ON ANY BEHAVIORAL RECOMMENDATIONS AVAILABLE ON OR THROUGH THE PROGRAM. THIS LIMITATION COVERS CLAIMS BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, AND ANY OTHER LEGAL THEORY. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL RETROFIT, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, AND THE PROGRAM-RELATED THIRD PARTIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS PROFESSIONALS), HAVE ANY LIABILITY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES INCURRED BY YOU (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST WAGES), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT SUCH PARTIES WERE ADVISED SUCH DAMAGES MIGHT ARISE. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION CONSTITUTE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND RETROFIT. IF YOU ARE DISSATISFIED WITH THE PROGRAM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PROGRAM. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS DEEMED UNENFORCEABLE BY AN ARBITER SELECTED IN ACCORDANCE WITH PARAGRAPH 9.7, THE TOTAL, CUMULATIVE LIABILITY OF RETROFIT, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, AND THE PROGRAM RELATED THIRD PARTIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS PROFESSIONALS) FOR LOSSES OR DAMAGES SHALL BE LIMITED TO THE AMOUNT OF YOUR ACTUAL DAMAGES, NOT TO EXCEED U.S. $500.00.
8.3 Indemnification. You agree to defend and indemnify Retrofit, its subsidiaries, successors, assigns, affiliates, licensors and suppliers and their respective officers, directors, managers, members, agents, and representatives (including the Wellness Practitioners) against any claim, demand, action, lawsuit, and liability (including reasonable attorneys” and experts” fees) arising out of, or alleged to result from, your use or misuse of, or inability to use, the Program or your violation of these Terms and Conditions, any laws, rules or regulations, or any rights of third parties.
9.1 Your Online Data. You agree to provide Retrofit with access to (i.e., provide the usernames and passwords for) your online accounts associated with your Retrofit Gear (including your accounts on www.fitbit.com and www.withings.com) so that we may monitor your data on these accounts. For avoidance of doubt, all such data will be deemed Participant Data for purposes of these Terms and Conditions.
9.2 Subcontractors. Retrofit may subcontract some or all of its obligations under these Terms and Conditions, without providing any prior notice to you.
9.3 No Third-Party Beneficiaries. Nothing in these Terms and Conditions is intended to create any rights in, or confer any benefits upon, any person or entity other than you and Retrofit.
9.4 Assignment. You may not assign or transfer your rights or obligations under these Terms and Conditions to any other person or entity.
9.5 Use of “Including”. Wherever the word “including” is used in these Terms and Conditions, it is not intended to limit the proposition preceding it, but is rather intended to mean “including but not limited to.”
9.6 Force Majeure. Neither party will be responsible for delays or failure in performance (other than failures to make payments due under the Customer Agreement) resulting from acts beyond the reasonable control of such party, including acts of God, strikes, lockouts, riots, acts of war, terrorism, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.
9.7 Governing Law; Dispute Resolution. These Terms and Conditions will be governed by and interpreted in accordance with the laws of the State of Illinois, without regard to its principles regarding conflicts of law. The United Nation’s Convention on Contracts for the International Sale of Goods is expressly disclaimed. Except as expressly set forth below in this paragraph, all disputes arising out of or relating to these Terms and Conditions or your use of the Program will be determined exclusively by arbitration in Chicago, Illinois, before a single arbitrator. The arbitration will be administered by JAMS (www.jamsadr.com) in accordance with its Streamlined Arbitration Rules, and judgment on any award may be entered in and enforced by any court of competent jurisdiction. Notwithstanding the foregoing, you agree that Retrofit may file a lawsuit in a state or federal court situated in Chicago, Illinois if we seek any type of temporary or permanent injunction against you, or if we have a reasonable belief that you are infringing or misappropriating any of our intellectual property or other proprietary rights, and for the purpose of such lawsuit you hereby submit to the exclusive jurisdiction of state or federal courts situated in Chicago, Illinois.
9.8 Entire Agreement. These Terms and Conditions and the Confirmation Emails constitute the sole and complete agreement between the parties with regard to the Program, and supersede all prior and contemporaneous agreements, proposals, representations, warranties, or promises, whether written or oral, relating to the Program. In the event of conflict between these Terms and Conditions and any Confirmation Email, the Confirmation Email shall control.
9.9 Severability. If any provision of these Terms and Conditions is adjudicated to be contrary to law, the provision will be modified and interpreted so as to best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions will remain in effect.
9.10 Manner of Giving Notice. All notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email. Retrofit will send notices to the address you provide to Retrofit during your use of the Program. You agree to send notices to Retrofit to the following address: Attn: Chief Executive Officer, Retrofit Inc., 123 N. Wacker Dr. Suite 1250, Chicago, Il 60606.