WARRANTIES AND DISCLAIMERS

 

THE SITE, SERVICES AND MATERIALS, ARE PROVIDED BY BULLPEN UNDER THESE TERMS OF USE "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, BULLPEN MAKES NO WARRANTY THAT (i) THE SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS; (ii) THE SITE, SERVICES OR MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM. THE USE OF THE SITE, SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iv) THE QUALITY OF THE SITE OR ANY SERVICES OR MATERIALS PURCHASED OR ACCESSIBLE BY YOU WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES OR MATERIALS WILL BE CORRECTED.

 

THIS SITE, SERVICES AND MATERIALS MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. BULLPEN MAY MAKE CHANGES TO THE SITE, MATERIALS AND SERVICES, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SOFTWARE OR PRODUCTS LISTED, AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE. THE SITE, MATERIALS AND SERVICES MAY BE OUT OF DATE, AND BULLPEN MAKES NO COMMITMENT TO UPDATE THE SITE, MATERIALS AND SERVICES.

 

YOU ACKNOWLEDGE AND AGREE THAT: (i) BULLPEN DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES, INCLUDING THIRD-PARTY VENDORS AND THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES; (ii) BULLPEN MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES; (iii) ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK; AND (iv) BULLPEN SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES.

BULLPEN DOES NOT CONTROL OR ENDORSE THE MATERIALS FOUND IN ANY SERVICES AND SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THE SITE, SERVICES AND ANY ACTIONS RESULTING FROM YOUR USE OF THE SITE AND MATERIALS AND PARTICIPATION IN ANY SERVICES. MANAGERS, HOSTS, PARTICIPANTS AND OTHER THIRD PARTIES ARE NOT AUTHORIZED BULLPEN SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF BULLPEN. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BULLPEN WILL HAVE NO LIABILITY RELATED TO USER MATERIALS ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY OR OTHER LAWS. BULLPEN ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO THE MISUSE, LOSS, MODIFICATION OR UNAVAILABILITY OF ANY USER MATERIALS.

 

THE USE OF THE SITE, SERVICES OR THE DOWNLOADING OR OTHER USE OF ANY MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. BULLPEN ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE SITE OR IN CONNECTION WITH ANY SERVICES OR MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BULLPEN OR VIA THE SITE, SERVICES OR MATERIALS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE. BULLPEN WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT WITH RESPECT TO THE SITE OR ANY SERVICES OR MATERIALS, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.

 

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS.

 

INTERNATIONAL USERS

This Site can be accessed from countries around the world and may contain references to Bullpen products, services and programs that are not available in your country. These references do not imply that Bullpen intends to announce such products, services or programs in your country. The Site is controlled, operated and administered by Bullpen Marketing, LLC from its offices within the United States of America. Bullpen makes no representation that the Site, the Services or Materials are appropriate or available for use at other locations outside the United States, and access to the Site from territories where the Site, the Services or Materials are illegal is prohibited. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws. See the section on export control laws below for further information.

 

PERSONAL INFORMATION AND PRIVACY

Bullpen will use and protect your data, such as your name and address, in accordance with the Bullpen Privacy Policy (click the link near the top of the page), the contents of which are incorporated by reference into the Terms of Use. Please be aware that your browser must be enabled to accept cookies in order for you to use certain Materials and Services or to purchase from the Bullpen online store.

 

LIMITATION OF LIABILITY

IN NO EVENT SHALL BULLPEN, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF BULLPEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (1) THE ACCESS OR USE OF OR THE INABILITY TO ACCESS OR USE THE SITE, SERVICES, OR MATERIALS; (2) THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR VIA THE SITE, SERVICES OR MATERIALS; (3) ANY DEALINGS WITH VENDORS OR OTHER THIRD PARTIES; (4) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, USER MATERIALS OR OTHER DATA; (5) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; (6) ANY FAILURE TO STORE OR LOSS OF DATA, FILES, MATERIALS OR OTHER CONTENT; (7) ANY SERVICES AVAILABLE THAT ARE DELAYED OR INTERRUPTED; (8) ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE; OR (9) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY LINKED SITE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.

 

NOTIFICATION OF COPYRIGHT INFRINGEMENT

Bullpen will, in appropriate circumstances, terminate the accounts of users who infringe the Intellectual Property Rights of others. Bullpen will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"). If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to from this Site or in connection with the Services or Materials, please provide, pursuant to the DMCA, written notification of claimed copyright infringement to the Designated Agent for this Site (identified below), which must contain the following elements:

Bullpen’s Designated Agent for Notice of claims of copyright infringement can be reached as follows:

 

By mail:


Matt McDermott/Designated Agent – Copyright Infringement Claims
Bullpen Marketing, LLC
PO Box 2384

Addison, Texas 75001

 

By telephone:


214-335-5348

 

By e-mail:


info@PersonalTrainingGoldmine.com

 

The Designated Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Site or on sites linked to from the Site or in connection with the Services or Materials. All other inquiries directed to the Designated Agent will not be responded to. Such inquiries should be made through info@PersonalTrainingGoldmine.com.

 

UNSOLICITED IDEA SUBMISSION POLICY

Unless a specific, written, and mutually agreed-upon contract is signed by you & Bullpen Marketing LLC, any unsolicited ideas, including ideas for advertising campaigns, promotions, products, technologies, processes, materials, marketing plans or product names, that are sent to Bullpen for consideration via this Site shall not be considered or accepted by Bullpen, nor deemed confidential or proprietary information (including any original creative artwork, samples, demos or other works presented in connection therewith).  Unless a specific, written, and mutually agreed-upon contract is signed by both parties

 

SPAM E-MAIL AND POSTINGS

In the event of your or others’ access to or use of the Site, Services or Materials in connection with the transmission of spam newsgroup postings or unsolicited e-mail in violation of these Terms of Use, you acknowledge and agree that Bullpen would be irreparably harmed thereunder and that monetary damages would be an insufficient and ineffective remedy; therefore you agree that Bullpen is entitled to obtain immediate injunctive relief against any such transmission (in addition to all other remedies available at law or in equity). Bullpen may without restriction block, filter or delete unsolicited e-mail.

 

ADVERTISEMENTS AND PROMOTIONS

Bullpen may run advertisements and promotions from third parties via the Site, Services or Materials in any manner or mode and to any extent. Your communications, activities, relationships and business dealings with any third parties advertising or promoting via the Site, Services or Materials, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, shall be solely matters between you and such third parties. You acknowledge and agree that Bullpen is not responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such non-Bullpen advertisers on the Site or in connection with the Services or Materials.

 

INDEMNITY AND LIABILITY

You agree to indemnify and hold Bullpen and FitnessMoneyMachine.com and their officers, co-branders, other partners and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your User Materials and any other content (e.g. computer viruses) that you may submit, post to or transmit through the Site (including a third party’s use of such User Materials or content (e.g. reliance on the accuracy, completeness or usefulness of your User Materials)); (b) your access to or use of the Site, Services or Materials (including any use by your employees, contractors or agents and all uses of your account numbers, user names and passwords, whether or not actually or expressly authorized by you, in connection with the Site or any Services or Materials); (c) your connection to the Site, Services or Materials; (d) your violation of the Terms of Use; (e) the actions of any member of your Work Group; (f) your infringement of any third party’s Intellectual Property Rights when using any of the Software made available on the Site, Services or in any Materials; (g) your violation of any rights of any third party; (h) your access to or use of Linked Sites and your connections thereto; or (i) any dealings between you and any third parties advertising or promoting via the Site, Services or Materials.

 

GOVERNING LAW AND JURISDICTION

This Site (excluding linked sites) is controlled by Bullpen Marketing, LLC from its offices within the state of Texas, United States of America. By accessing this Site, you agree that all matters relating to your access to, or use of, this Site shall be governed by the statutes and laws of the State of Texas, without regard to the conflicts of laws principles thereof. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. You also agree and hereby submit to the exclusive personal jurisdiction and venue of the Courts of Dallas County and the United States District Court for the Northern District of Texas with respect to such matters.

 

Adjudication of Disputes, Forum:  Waiver of Right to Jury Trial.

 

In the event that any dispute arises between you and Bullpen whether under the terms hereof or as a result of any action taken by Bullpen or you as a result or consequence of your use of Bullpen’s or FitnessMoneyMachine.com’s website or any documents or materials you downloaded, viewed or referred to on the this website, or by reason of any communication, request for information or other contact between you or a representative of yours and Bullpen or any representative of the Bullpen, you and Bullpen expressly agree to waive and hereby waive any rights we each may have to a trial by jury of any and all issues arising in any action or proceeding between you and Bullpen or our respective successors, representatives, assigns, or heirs.  In addition, any claim, dispute, or controversy (“claim”) by you or Bullpen against the other shall be resolved in an appropriate court of law located in Dallas County, Texas, as described above.              

 

LANGUAGE

It is the express wish of the parties that the Terms of Use and all related documents have been drawn up in English.

 

GENERAL

The Terms of Use and other rules, guidelines, licenses and disclaimers posted via the Site or in connection with the Materials and Services constitute the entire agreement between Bullpen and you with respect to your access to or use of the Site, Materials and Services superseding any prior agreements between you and Bullpen on such subject matter (including any prior versions of the Terms of Use). Notwithstanding the foregoing, to the extent that any terms set forth in the Terms of Use expressly contradict any terms of a written agreement between you and Bullpen or FitnessMoneyMachine.com regarding the use of specific Services or Materials (including Service-specific terms of use and Software-specific licenses) ("Executed Agreement"), such contradictory terms set forth in the Executed Agreement shall govern. You may also be subject to additional terms and conditions that may apply when you use other Bullpen services, third party content or third party software. You may not assign or otherwise transfer the Terms of Use nor any right granted hereunder without Bullpen’s prior written consent. If for any reason a court of competent jurisdiction finds any provision of the Terms of Use, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Use shall continue in full force and effect. Any failure by Bullpen to enforce or exercise any provision of the Terms of Use or related right shall not constitute a waiver of that right or provision. The section titles used in the Terms of Use are purely for convenience and carry with them no legal or contractual effect.