END USER LICENSE AGREEMENT & TERMS OF SERVICE - Mastrow
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PROS LICENSE AGREEMENT & TERMS OF SERVICE (MastrowPRO Users)

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND GYMONJI, INC., dba MASTROW.

No one under the age of 13 may use this App. If you are under the age of 18 years (or the age of legal majority where you live), you may only access or use our services under the supervision of a parent or legal guardian who agrees to be bound by these terms and conditions. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

1. Contractual Relationship. These Terms of Use (“Terms”) govern your access or use of the applications, websites, content, products, and services (as defined in Section 2, below) made available by Gymonji, Inc., doing business as Mastrow and its parents, subsidiaries, successors, assigns, representatives, and affiliates, collectively, “Mastrow”).

By accessing or using the Services, you (also referred to as “your” or “Pro”) confirm your agreement to be bound by these Terms. These Terms expressly supersede prior agreements or arrangements between Mastrow and you.

Mastrow may amend the Terms from time to time. Amendments will be effective upon Mastrow’s posting of such updated Terms at this location. You are advised to rewiew the Terms from time to time in order to review any changes. Regardless of whether you do review the Terms, your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.

2. The Services. Mastrow offers a social media platform, including software services, the Site (as defined below), mobile applications and related services focused primarily on the personal fitness industry (each an “Application” and collectively the “Applications”). The Services enable professionals (“Pros”) to arrange and schedule fitness sessions, fitness activities, fitness-related services, logistics and/or logistics-related services (each an “Activity” and collectively the “Activities”). YOU USE THE PRODUCTS OR SERVICES OF ANY THIRD PARTY AT YOUR OWN RISK, and agree to indemnify and hold Mastrow, its owners, shareholders, members, partners, directors, officers, agents, employees, attorneys, successors, and assigns harmless from any injury, loss, or damages claimed by you or your heirs or representatives in whole or in part, resulting directly or indirectly from using the Services and/or from any third party product, service or conduct. Fees for the Services shall be subject to periodic adjustment by Mastrow.

3. The Site. The Site includes www.mastrow.com, any Application associated with any website owned and/or operated by Mastrow, all of their constituent pages, all content on said websites and any constituent page, all URL’s associated with or which lead to said websites, all trade dress and monikers on said websites, all of Mastrow’s intellectual property contained anywhere on said websites (including without limitation all trademarks, service marks, copyrights, and patents), the source and any other code, design elements, renditions, and copies of any of the foregoing. The Site further includes any and all amendments, modifications, and changes of any nature whatsoever to the foregoing.

4. License. Subject to your continued compliance with the terms of these Terms, Mastrow grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable 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 use. Any rights not expressly granted herein are reserved by Mastrow or Mastrow’s licensors. You, including but not limited to, any representative, agent, employee, director, officer, shareholder, partner, member, or third party acting on your behalf, shall not reverse engineer, reverse assemble, attempt or purport to discover any source code; sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Proprietary Materials (as defined below); copy, modify, rent, lease, loan, sell, distribute, or create derivative works of (or based on) the Proprietary Materials, in whole or in part; or use modified versions of the Proprietary Materials, including without limitation obtaining unauthorized access to the Applications or the Services. You may access the Applications only through the interfaces provided by or through Mastrow.

5. Ownership. The Services and all rights therein are and shall remain Mastrow’s property or the property of Mastrow’s licensors. 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 Mastrow’s company names, logos, product and service names, trademarks or services marks or those of Mastrow’s licensors.

6. Arbitration Agreement. By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Mastrow on an individual basis in arbitration, as set forth in these Terms. This will preclude you from bringing any class, collective, or representative action against Mastrow, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Mastrow by someone else.

a. Agreement to Binding Arbitration Between You and Mastrow. You and Mastrow agree that any dispute, claim or controversy arising out of or relating to these Terms or your access to or use of the Services at any time will be settled by binding arbitration between you and Mastrow, and not in a court of law.

b. Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by these Terms. The parties agree that the arbitrator (“Arbitrator”) shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of these Terms, including any claim that all or any part of this section of these Terms is void or voidable. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that these Terms shall be resolved under the laws of the state of California.

c. Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

d. Location and Procedure. Unless you and Mastrow otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Mastrow submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

e. Arbitrator’s Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. An Arbitrator’s decision shall be final and binding on all parties. The prevailing party in the arbitration shall be entitled to recovery of reasonable attorneys’ fees and costs.

f. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. Mastrow reserves the right to seek administrative and arbitrator fees if Mastrow prevails in arbitration, if the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

7. Payment. Mastrow may, at its sole discretion, implement usage or other fees for access or use of the Applications and the Services. The amount of such fees and payment terms, as well as any changes thereto, shall be posted from time on the Site and/or the Applications.

8. Indemnity. You recognize that providing an Activity that can be arranged or scheduled through the Services involves a certain degree of risk and liability exposure to you. Therefore, you accept financial responsibility for any injury that you may cause either to yourself or to any other participant for any reason at all. Should the above mentioned parties, or anyone acting on their behalf, incur attorneys’ fees and/or costs to enforce this Agreement, you agree to reimburse any such parties for such fees and costs. You further agree to indemnify and hold harmless Mastrow and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ 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) Mastrow’s use of your Pro Content; (iv) death or injury to any party, or (v) your violation of the rights of any third party, including third party providers. Mastrow does not provide any insurance coverage for you.

9. Express Assumption of Risk. You acknowledge, agree and understand that an Activity arranged or scheduled through the Services presents inherent dangers which may result in death, serious injury, or property damage to yourself or others. These risks include, but are not limited to: falls which can result in serious injury or death, cuts or abrasions resulting from use of a training facility, injury or death due to your negligence, a training partner, other people around you, injury or death due to improper use or failure of equipment, vehicular traffic, topography, weather, wild animals, nature or lack of resources. You fully recognize that any of these above mentioned risks may result in serious injury or death to you or others. You willingly, knowingly, and freely accept and assume full responsibility for your risks and exposure and accept and assume full responsibility for any injury or death that may result from participation in any Activity. YOU HEREBY REPRESENT AND WARRANT TO MASTROW THAT YOU KNOW OF NO PHYSICAL OR MEDICAL CONDITION THAT EITHER YOU, OR YOUR PHYSICIAN, IS AWARE OF THAT COULD BE AGGRAVATED BY PARTICIPATING IN AN EXERCISE PROGRAM, WHETHER SUPERVISED OR UNSUPERVISED. You represent and warrant to Mastrow that you will consult with a physician prior to undergoing any dietary or food supplement changes. You will obtain a physical examination prior to participating in any exercise activity or commencing any changes in your diet.
10. Rules and Regulations; Code of Conduct. You agree to comply with all rules imposed by Mastrow regarding any Activity scheduled through the Services, including, without limitation, rules with respect to personal hygiene and safety. You are solely responsible for your safety and well-being, and Pro understands that Mastrow does not provide supervision, instruction, or assistance for any Activity or the use of any facilities and equipment. You will conduct yourself in a controlled and reasonable manner at all times and to refrain from using any equipment in a manner inconsistent with its intended design and purpose. You will not conduct an Activity with any open cuts, abrasions, infections, maladies with the potential of harm to others, or otherwise in accordance with applicable public health requirements. Your compliance with the foregoing shall be determined by Mastrow in its sole and absolute discretion. Rules and regulations for any Activity arranged or scheduled through the Services are subject to change in the Mastrow’s sole and absolute discretion. You understand and agrees that the Mastrow may revoke your rights because of your failure to obey the rules and regulations or because of any of your Activities which create a nuisance, safety hazard, and disturbance or constitutes an act of moral turpitude or fraud. MASTROW recommends that you wear appropriate exercise attire at all times and that you use all equipment in the manner intended. No shows (or the failure to cancel an Activity within twenty four (24) hours of its scheduled time) are counted as a session and will be charged accordingly. Failure to use a Service does not constitute a refund nor a credit applied to any future Service. Mastrow is not responsible for lost or stolen articles. Mastrow reserves the right to alter or amend these rules or change the fees at any time.

11. Permissions. You grant to Mastrow, its representatives and employees, the right to use your image, name, and likeness, in any format, electronic or otherwise, before, during or after an Activity, for purposes of promoting the Mastrow product. You agree that Mastrow may use such photographs or videos of you with or without your name and for any lawful purpose, including, without limitation, such purposes as publicity, illustration, advertising and website content, and without any further compensation to you.

12. Subscription. You shall provide true, accurate, current, and complete information as prompted by the Applications and shall update such information from time to time as is necessary. The provision of false, inaccurate, or incomplete information or failure to maintain current information shall be grounds for the immediate termination of this Agreement. You agree only you will use any account created with your subscription and that you will not share any access information, including without limitation your login or password, with any third party. You are solely responsible for maintaining the security of your login and password and agree to indemnify Mastrow for any loss, damage, claim, liability, or cause of action occasioned by the use of such login and password by any third parties. In the event that you believe your account information has been compromised you are required to notify us immediately.

13. Use of the Services.

a. Equipment. You are solely responsible for providing the equipment necessary to access and use the Applications and the Services, including without limitation any computer, drive, software, hardware, application, modem, and internet connection. Mastrow shall not be responsible for any fees paid or accrued by you to access the internet. You agree to hold Mastrow harmless from any damage to such equipment regardless of the cause of such damage. You are also solely responsible for providing your own equipment that may be necessary for conducting any Activity.

b. Content. All information, data, text, software, graphics, voice or sound files, photographs, videos, depictions, messages, emails, chats, text messages, documents, and other such materials (“Content”) of you or any third party used on or transmitted by or through (i) the Applications or (ii) the use of the Services shall be the sole and exclusive property of the user or such third party as appropriate. Mastrow does not warrant or guaranty the accuracy, integrity, quality, veracity, or appropriateness for any purpose of such Content, and shall be held harmless and indemnified by you for any damages caused by or arising out of the use, reliance on, or application of the Content, including without limitation damages caused by errors, omissions, inaccuracies, negligence, misrepresentations, or fraud.

c. Prohibited Content. You shall not post on the Applications, on your own behalf or on behalf of any third party, and shall not permit others to post on the Applications, any Content that, in whole or in part: (a) Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, or hate speech;(b) misrepresents the actual identity of a person, or that misrepresents or falsely represents an affiliation with a person or entity; (c) constitutes advertising, promotional material, junk mail, spam, a chain letter, pyramid scheme, or an unauthorized solicitation; (d) is infected by or contains viruses, malware, spyware, worms, or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer, software, hardware, program, or telecommunications equipment; (e) is likely to interfere with or disrupt the Applications or the Services, or any server or network connected thereto, or contravenes any requirements, policies, procedures, or requirements of networks connected to the Applications or the Service; (f) violates any federal, state, or local law, statute, regulation, rule, code, or ordinance, or otherwise applicable laws regarding transmission of technical data; (g) imposes an unreasonable or disproportionate workload on Mastrow, the Applications, or the Services, or (h) violates any applicable state or federal laws (collectively, “Prohibited Content”). Mastrow shall not prescreen any Content but reserves the right to remove without notice any Content that Mastrow deems, in its sole discretion, to constitute Prohibited Content.

d. Content Modification. You acknowledge and specifically authorize Mastrow to change, alter, or modify the Content as necessary in order to transmit it over one or more networks and to conform and adapt it, the Applications, or the Services to any technical requirements of connecting networks, devices, hardware, software, and the like.

e. Disclosure of Content. Mastrow may preserve and disclose Content (i) when it is or reasonably determines that it is obligated to preserve and/or disclose Content pursuant to any applicable international law, treaty, federal, state, or local law, statute, code, rule, regulation, or ordinance; (ii) to comply with any legal process; (iii) to enforce the terms of this Agreement; (iv) to respond to complaints or claims that the Content violates any third party rights; (v) to protect any right or property of Mastrow; or (vi) to protect the personal safety or property of any user of the Applications or the Services.

f. Storage. Mastrow does not warrant or guaranty continued access to any Content transmitted to or stored on the Applications or used in any manner on the Applications or as part of the provision of the Services, and this Agreement further expressly excludes any warranty that such Content will not be lost, damaged, or destroyed. Mastrow shall not maintain a copy, in whole or in part, of any Content, and further shall be held harmless in the event of a failure to properly store any Content. Mastrow assumes no responsibility for, and shall be held harmless in the event of, any injury or damage to you arising out of the deletion of, failure to properly or timely deliver, and/or failure to accurately store any user communications, addresses, or personalization settings.

g. Any user who is a trainer, coach, or other person or entity acting on behalf of or who is an agent, employee, representative, contractor or affiliate of any third party hereby represents and warrants that such third party authorizes the use of the Applications and the Services to fulfil any responsibilities or obligations or exercise of any rights with respect to such third party.

h. Modification. Mastrow may (i) establish general practices and use limits concerning the Applications and the Services, (ii) limit the size of communications that may be transmitted through the Applications and the Services, (iii) limit the amount of Content that may be stored or processed by you on or through the Applications, (iv) limit your access to the Applications as may be necessary and reasonable under the circumstances, (v) change or modify its general practices in its sole discretion and with or without notice to you, (vi) change or modify the Applications, the Terms of Service, or the Services in its sole discretion and with or without notice to you, (vii) quarantine prohibited Content; (viii) modify domain and user settings in its sole discretion and with or without notice to you (including without limitation modifications designed to eliminate spam or bulk mail); and (ix) modify, suspend, or discontinue the Applications or the Services as necessary for routine maintenance, extraordinary repairs, or due to an attack by hackers or other third party.
14. Termination. In the event of your breach of any term of this Agreement, Mastrow, in its sole discretion, may suspend or terminate your account (including without limitation deactivation of your password) and remove and discard the Content, and delete any records concerning or associated with your use of the Applications or the Services. You agree that you are not entitled to any refund in the event of termination, and that you will indemnify Mastrow and hold it harmless from any costs of any nature whatsoever caused by or attributable in whole or in part to such termination. Mastrow may amend these Terms at any time.

15. HIPAA Notice. The Applications do not provide medical or health care information. You are advised not to communicate health information or personal identifying information (as defined by the Health Insurance Portability and Accountability Act (“HIPAA”)) as amended and as interpreted by tribunals of competent jurisdictions) through the Applications. The Applications are not designed to be HIPAA compliant.

16. Mastrow’s Proprietary Property. The Applications, the Services, and any software, hardware, platform, server, code, or other materials used in connection with the Applications and the Services (collectively “the Proprietary Materials”) all of which are owned by Mastrow and/or its affiliates contain proprietary and confidential information not available to the public and protected by intellectual property and trade secret laws, including without limitation the Uniform Trade Secrets Act as well as trademark and copyright protections.

17. Remedies. The parties agree that in the event of a breach or potential breach of either the Mastrow’s Proprietary Property or the Confidentiality sections of the Terms, or both, Mastrow may petition any court of competent jurisdiction for a restraining order, injunction, or such other equitable remedy as it may deem appropriate, and you expressly waive any defense to the inapplicability or inappropriateness of such equitable remedies.

18. Third Party Service Providers. Certain third parties may offer products and services through the Applications. Each such third party is solely responsible for the products or services it offers. Mastrow makes no warranty, guaranty, or representation concerning the availability, quality, fitness, safety, or suitability of or with respect to any such product or service or of the person or entity that offers, provides, or sells such product or service and expressly disclaims any such warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose or merchantability. You agree to indemnify Mastrow and hold it harmless from any loss, liability, damage, injury, or cause of action caused by or attributable to, in whole or in part, any negligent, grossly negligent, reckless, intentional, or wilful act or omission of such third party product or service.

19. Disclaimer of Warranties. USE OF THE APPLICATIONS AND THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE APPLICATIONS AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MASTROW EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANY GOODS OR TANGIBLE MATERIALS PROCURED OR OBTAINED THROUGH THE WEBSITE, REGARDLESS OF ORIGIN, MANUFACTURER, OR PRODUCER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MASTROW MAKES NO WARRANTY THAT (i) ANY INFORMATION OR ADVICE OBTAINED FROM THE USE OF THE APPLICATIONS OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (ii) THE QUALITY OF ANY SERVICES OR INFORMATION OBTAINED AS A RESULT OF THE USE OF THE APPLICATIONS OR THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (iii) ANY ERRORS THAT IMPAIR THE FUNCTIONALITY OF THE APPLICATIONS OR THE SERVICES WILL BE REPAIRED. YOU ASSUME ALL RISK OF LOSS FROM DAMAGE TO ITS COMPUTERS, SOFTWARE, HARDWARE, DRIVES, CODE, DATA, INFORMATION, CONTENT, INTELLECTUAL PROPERTY, AND OTHER PROPERTY OF ANY NATURE WHATSOEVER CAUSED IN ANY MANNER OR BY ANY METHOD FROM MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR OTHERWISE OBTAINED OR SENT USING THE APPLICATIONS. YOU ASSUME ALL RISK OF LOSS CAUSED BY VIRUSES, MALWARE, WORMS, OR OTHER PROGRAMS OR MATERIALS TRANSMITTED BY OR THROUGH THE APPLICATIONS.

20. Privacy. You acknowledge that Mastrow may collect personally identifiable, confidential, proprietary, trade secret, intellectual property, business, financial, and similar information (“Your Proprietary Information”). Except as set forth elsewhere in the Terms, Mastrow shall not knowingly sell, rent, lease, transfer, or disclose any of Your Proprietary Information unless (i) you consent to such sale, lease, transfer, or disclosure; (ii) sale, lease, transfer, or disclosure by Mastrow is necessary to the provision of the Services; or (iii) as necessary due to your breach of the Terms. Mastrow may change the provisions of this section as it deems necessary in its sole discretion and shall provide notice of same as mandated by these Terms.

21. Limitation of Liability. In no event shall Mastrow be liable to you for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim or liabilities to third parties arising from any source, even if a party to these Terms has been advised of the possibility of damages.

22. Choice of Law. These Terms are governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in clause 6 of these Terms, are only intended to specify the use of California law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in clause 6 or to any arbitrable disputes as defined therein. Instead, as described in clause 6, the Federal Arbitration Act shall apply to any such disputes.

23. Miscellaneous Provisions. Failure of a party to enforce any provision of the Terms shall not constitute a waiver of such provision or of the right of a party at any time to avail itself of such remedies as it may have for any breach or breaches of such provision. You warrant that you have read these Terms the foregoing Agreement, understand and acknowledge each of its provisions, have the legal capacity to be bound to these Terms on your own behalf as well as on behalf of any entity or third party signatory, and agree on your behalf and on behalf of any entity or third party signatory to be bound by the terms and conditions herein. Mastrow shall not be liable in the event that the performance of any obligation of Mastrow hereunder is rendered impossible by any circumstance beyond its control and not created by its own act or omission, including acts such as flood, fire, and other natural disasters, war, riot or social unrest, work stoppage, act of terrorism, and Acts of God (collectively, “forece majeure”). Mastrow shall resume performance pursuant to the provisions of these Terms upon the abatement of the force majeure. Any notice required to be given to you may be made, in Mastrow’s sole discretion, by posting same conspicuously on the Applications or by email to any email address provided by you. Notice to Mastrow shall be by U.S. Mail to 1 MacArthur Place Suite 200, Santa Ana, CA 92707. If any portion of these Terms is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful provision shall be severed from these Terms.

 

 

 

 

 

END USER LICENSE AGREEMENT & TERMS OF SERVICE (Client User – Mastrow)

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND GYMONJI, INC., dba MASTROW.

No one under the age of 13 may use this App. If you are under the age of 18 years (or the age of legal majority where you live), you may only access or use our services under the supervision of a parent or legal guardian who agrees to be bound by these terms and conditions. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

1. Contractual Relationship. These Terms of Use (“Terms”) govern your access or use of the applications, websites, content, products, and services (as defined in Section 2, below) made available by Gymonji, Inc., doing business as Mastrow and its parents, subsidiaries, successors, assigns, representatives, and affiliates, collectively, “Mastrow”).

By accessing or using the Services, you confirm your agreement to be bound by these Terms. These Terms expressly supersede prior agreements or arrangements between Mastrow and you.

Mastrow may amend the Terms from time to time. Amendments will be effective upon Mastrow’s posting of such updated Terms at this location. You are advised to rewiew the Terms from time to time in order to review any changes. Regardless of whether you do review the Terms, your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.

2. The Services. Mastrow offers a social media platform, including software services, the Site (as defined below), mobile applications and related services focused primarily on the personal fitness industry (each an “Application” and collectively the “Applications”). The Services enable users to arrange and schedule fitness sessions, fitness activities, fitness-related services, logistics and/or logistics-related services. Mastrow does not itself offer fitness advice or programs, training, gym memberships, equipment, exercise protocols, or similar products or services. Any fitness advice or programs, training, gym memberships, equipment, exercise protocols, or similar services, to the extent procured in whole or in part through the Services, are provided by third parties. Mastrow does not review, vet, or verify the credentials, training, licensure, or ability of any person or entity offering products or services on or through the Application. YOU ACKNOWLEDGE THAT YOUR ABILITY TO SCHEDULE FITNESS SESSIONS, FITNESS ACTIVITIES, FITNESS-RELATED SERVICES, LOGISTICS AND/OR LOGISTICS-RELATED SERVICES DOES NOT ESTABLISH MASTROW AS A PROVIDER OF FITNESS SESSIONS OR FITNESS ACTIVITIES OR FITNESS-RELATED SERVICES OR LOGISTICS OR LOGISTICS-RELATED SERVICES. YOU USE THE PRODUCTS OR SERVICES OF ANY THIRD PARTY AT YOUR OWN RISK, and agree to indemnify Mastrow, its owners, shareholders, members, partners, agents, employees, attorneys, and assigns, and hold them all harmless from any injury, loss, or damages claimed by you or your heirs or representatives in whole or in part, resulting directly or indirectly from using the Services and/or from any third party product or service.

3. The Site. The Site includes www.mastrow.com, any Application associated with any website owned and/or operated by Mastrow, all of their constituent pages, all content on said websites and any constituent page, all URL’s associated with or which lead to said websites, all trade dress and monikers on said websites, all of Mastrow’s intellectual property contained anywhere on said websites (including without limitation all trademarks, service marks, copyrights, and patents), the source and any other code, design elements, renditions, and copies of any of the foregoing. The Site further includes any and all amendments, modifications, and changes of any nature whatsoever to the foregoing.

4. License. Subject to your continued compliance with the terms of this Agreement, Mastrow grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable 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, non-commercial use. Any rights not expressly granted herein are reserved by Mastrow or Mastrow’s licensors. You, including but not limited to, any representative, agent, employee, director, officer, shareholder, partner, member, or third party acting by or on your behalf, reverse engineer, reverse assemble, attempt or purport to discover any source code; sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Proprietary Materials (as defined below); copy, modify, rent, lease, loan, sell, distribute, or create derivative works of (or based on) the Proprietary Materials, in whole or in part; or use modified versions of the Proprietary Materials, including without limitation obtaining unauthorized access to the Applications or the Services. You may access the Applications only through the interfaces provided by or through Mastrow.

5. Ownership. The Services and all rights therein are and shall remain Mastrow’s property or the property of Mastrow’s licensors. 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 Mastrow’s company names, logos, product and service names, trademarks or services marks or those of Mastrow’s licensors.

6. Arbitration Agreement. By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Mastrow on an individual basis in arbitration, as set forth in these Terms. This will preclude you from bringing any class, collective, or representative action against Mastrow, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Mastrow by someone else.

a. Agreement to Binding Arbitration Between You and Mastrow. You and Mastrow agree that any dispute, claim or controversy arising out of or relating to these Terms or your access to or use of the Services at any time will be settled by binding arbitration between you and Mastrow, and not in a court of law.

b. Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by these Terms. The parties agree that the arbitrator (“Arbitrator”) shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of these Terms, including any claim that all or any part of this section of these Terms is void or voidable. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that these Terms shall be resolved under the laws of the state of California.

c. Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

d. Location and Procedure. Unless you and Mastrow otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Mastrow submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

e. Arbitrator’s Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. An Arbitrator’s decision shall be final and binding on all parties. The prevailing party in the arbitration shall be entitled to recovery of reasonable attorneys’ fees and costs.

f. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. Mastrow reserves the right to seek administrative and arbitrator fees if Mastrow prevails in arbitration, if the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

7. Payment. Mastrow may, at its sole discretion, implement usage or other fees for access or use of the Applications and the Services. The amount of such fees and payment terms, as well as any changes thereto, shall be posted from time on the Site and/or the Applications. Mastrow may suspend access to or interrupt any aspect of the Services in the event any user fails to pay any fee as and when due.

8. Indemnity. You agree to indemnify and hold Mastrow and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ 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) Mastrow’s use of your user Content; or (iv) your violation of the rights of any third party, including third party providers.

9. Express Assumption of Risk. You acknowledge, agree and understand that an Activity arranged or scheduled through the Services presents inherent dangers which may result in death, serious injury, or property damage to yourself or others. These risks include, but are not limited to: falls which can result in serious injury or death, cuts or abrasions resulting from use of a training facility, injury or death due to your negligence, a training partner, a trainer or other people around you, injury or death due to improper use or failure of equipment, vehicular traffic, topography, weather, wild animals, nature or lack of resources. You fully recognize that any of these above mentioned risks may result in serious injury or death to you or others. You willingly, knowingly, and freely accept and assume full responsibility for your risks and exposure and accept and assume full responsibility for any injury or death that may result from participation in any Activity. YOU HEREBY REPRESENT AND WARRANT TO MASTROW THAT YOU KNOW OF NO PHYSICAL OR MEDICAL CONDITION THAT YOU OR YOUR PHYSICIAN, IS AWARE OF THAT COULD BE AGGRAVATED BY PARTICIPATING IN AN EXERCISE PROGRAM, WHETHER SUPERVISED OR UNSUPERVISED. YOU AGREE TO ADVISE MASTROW IN WRITING IF THIS CHANGES OR IF YOUR PHYSICIAN ADVISES YOU TO STOP, REDUCE OR OTHERWISE ADJUST YOUR EXERCISE ROUTINE. YOU SHALL ADVISE MASTROW IF YOU INJURE YOURSELF IN ANY WAY WHILE PARTICIPATING IN AN ACTIVITY ARRANGED OR SCHEDULED THROUGH THE SERVICES. You represent and warrant to Mastrow that you will consult with a physician prior to undergoing any dietary or food supplement changes. You will obtain a physical examination prior to participating in any exercise activity or commencing any changes in your diet.
10. Subscription. You shall provide true, accurate, current, and complete information as prompted by the Applications and shall update such information from time to time as is necessary. The provision of false, inaccurate, or incomplete information or failure to maintain current information shall be grounds for the immediate termination of this Agreement. You agree only you will use any account created with your subscription and that you will not share any access information, including without limitation your login or password, with any third party. You are solely responsible for maintaining the security of your login and password and agree to indemnify Mastrow for any loss, damage, claim, liability, or cause of action occasioned by the use of such login and password by any third parties. In the event that you believe your account information has been compromised you are required to notify us immediately.

11. Use of the Services.

a. Equipment. You are solely responsible for providing the equipment necessary to access and use the Applications and the Services, including without limitation any computer, drive, software, hardware, application, modem, and internet connection. Mastrow shall not be responsible for any fees paid or accrued by you to access the internet. You agree to hold Mastrow harmless from any damage to such equipment regardless of the cause of such damage. You may also be solely responsible for providing your own equipment that may be necessary for conducting a specific Activity.

b. Content. All information, data, text, software, graphics, voice or sound files, photographs, videos, depictions, messages, emails, chats, text messages, documents, and other such materials (“Content”) of you or any third party used on or transmitted by or through (i) the Applications or (ii) the use of the Services shall be the sole and exclusive property of the user or such third party as appropriate. Mastrow does not warrant or guaranty the accuracy, integrity, quality, veracity, or appropriateness for any purpose of such Content, and shall be held harmless and indemnified by you for any damages caused by or arising out of the use, reliance on, or application of the Content, including without limitation damages caused by errors, omissions, inaccuracies, negligence, misrepresentations, or fraud.

c. Prohibited Content. You shall not post on the Applications, on your own behalf or on behalf of any third party, and shall not permit others to post on the Applications, any Content that, in whole or in part: (a) Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, or hate speech; (b) misrepresents the actual identity of a person, or that misrepresents or falsely represents an affiliation with a person or entity; (c) constitutes advertising, promotional material, junk mail, spam, a chain letter, pyramid scheme, or an unauthorized solicitation; (d) is infected by or contains viruses, malware, spyware, worms, or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer, software, hardware, program, or telecommunications equipment; (e) is likely to interfere with or disrupt the Applications or the Services, or any server or network connected thereto, or contravenes any requirements, policies, procedures, or requirements of networks connected to the Applications or the Service; (f) violates any federal, state, or local law, statute, regulation, rule, code, or ordinance, or otherwise applicable laws regarding transmission of technical data; (g) imposes an unreasonable or disproportionate workload on Mastrow, the Applications, or the Services, or (h) violates any applicable state or federal law. Mastrow shall not prescreen any Content but reserves the right to remove without notice any Content that Mastrow deems, in its sole discretion, to constitute Prohibited Content.

d. Content Modification. You acknowledge and specifically authorize Mastrow to change, alter, or modify the Content as necessary in order to transmit it over one or more networks and to conform and adapt it, the Applications, or the Services to any technical requirements of connecting networks, devices, hardware, software, and the like.

e. Disclosure of Content. Mastrow may preserve and disclose Content (i) when it is or reasonably determines that it is obligated to preserve and/or disclose Content pursuant to any applicable international law, treaty, federal, state, or local law, statute, code, rule, regulation, or ordinance; (ii) to comply with any legal process; (iii) to enforce the terms of this Agreement; (iv) to respond to complaints or claims that the Content violates any third party rights; (v) to protect any right or property of Mastrow; or (vi) to protect the personal safety or property of any user of the Applications or the Services.

f. Storage. Mastrow does not warrant or guaranty continued access to any Content transmitted to or stored on the Applications or used in any manner on the Applications or as part of the provision of the Services, and this Agreement further expressly excludes any warranty that such Content will not be lost, damaged, or destroyed. Mastrow shall not maintain a copy, in whole or in part, of any Content, and further shall be held harmless in the event of a failure to properly store any Content. Mastrow assumes no responsibility for, and shall be held harmless in the event of, any injury or damage to you arising out of the deletion of, failure to properly or timely deliver, and/or failure to accurately store any user communications, addresses, or personalization settings.

g. Third Party. Any user who is a trainer, coach, or other person or entity acting on behalf of or who is an agent, employee, representative, contractor or affiliate of any third party hereby represents and warrants that such third party authorizes the use of the Applications and the Services to fulfil any responsibilities or obligations or exercise of any rights with respect to such third party.

h. Modification. Mastrow may, without any liability to you, (i) establish general practices and use limits concerning the Applications and the Services, (ii) limit the size of communications that may be transmitted through the Applications and the Services, (iii) limit the amount of Content that may be stored or processed by you on or through the Applications, (iv) limit your access to the Applications as may be necessary and reasonable under the circumstances, (v) change or modify its general practices in its sole discretion and with or without notice to you, (vi) change or modify the Applications, the Terms of Service, or the Services in its sole discretion and with or without notice to you, (vii) quarantine prohibited Content; (viii) modify domain and user settings in its sole discretion and with or without notice to you (including without limitation modifications designed to eliminate spam or bulk mail); and (ix) modify, suspend, or discontinue the Applications or the Services as necessary for routine maintenance, extraordinary repairs, or due to an attack by hackers or other third party.
12. Termination. In the event of your breach of any term of this Agreement, Mastrow, in its sole discretion, may suspend or terminate your account (including without limitation deactivation of your password) and remove and discard the Content, and delete any records concerning or associated with your use of the Applications or the Services. You agree that you are not entitled to any refund in the event of termination, and that you will indemnify Mastrow and hold it harmless from any costs of any nature whatsoever caused by or attributable in whole or in part to such termination.

13. HIPAA Notice. The Applications do not provide medical or health care information. You are advised not to communicate health information or personal identifying information (as defined by the Health Insurance Portability and Accountability Act (“HIPAA”) as amended, and as interpreted by tribunals of competent jurisdiction) through the Applications. The Applications are not designed to be HIPAA compliant.

14. Mastrow’s Proprietary Property. The Applications, the Services, and any software, hardware, platform, server, code, or other materials used in connection with the Applications and the Services (collectively “the Proprietary Materials”) all of which are owned by Mastrow and/or its affiliates contain proprietary and confidential information not available to the public and protected by intellectual property and trade secret laws, including without limitation the Uniform Trade Secrets Act as well as trademark and copyright protections.

15. Remedies. The parties acknowledge that any breach of (i) Mastrow’s rights in and to its Proprietary Property or (ii) the Confidentiality provisions of this Agreement are such that legal remedies alone would be insufficient to protect Mastrow’s rights and interests. The parties further agree that in the event of a breach or potential breach of either the Mastrow’s Proprietary Property or the Confidentiality sections of this Agreement, or both, Mastrow may petition any court of competent jurisdiction for a restraining order, injunction, or such other equitable remedy as it may deem appropriate, and you expressly waive any defense to the inapplicability or inappropriateness of such equitable remedies.

16. Third Party Service Providers. Certain third parties may offer products and services through the Applications. Each such third party is solely responsible for the products or services it offers. Mastrow makes no warranty, guaranty, or representation concerning the availability, quality, fitness, safety, or suitability of or with respect to any such product or service or of the person or entity that offers, provides, or sells such product or service and expressly disclaims any such warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose or merchantability. You agree to indemnify Mastrow and hold it harmless from any loss, liability, damage, injury, or cause of action caused by or attributable to, in whole or in part, any negligent, grossly negligent, reckless, intentional, or wilful act or omission of such third party product or service.

17. Disclaimer of Warranties. USE OF THE APPLICATIONS AND THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE APPLICATIONS AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MASTROW EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANY GOODS OR TANGIBLE MATERIALS PROCURED OR OBTAINED THROUGH THE WEBSITE, REGARDLESS OF ORIGIN, MANUFACTURER, OR PRODUCER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MASTROW EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MASTROW MAKES NO WARRANTY THAT (i) ANY INFORMATION OR ADVICE OBTAINED FROM THE USE OF THE APPLICATIONS OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (ii) THE QUALITY OF ANY SERVICES OR INFORMATION OBTAINED AS A RESULT OF THE USE OF THE APPLICATIONS OR THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (iii) ANY ERRORS THAT IMPAIR THE FUNCTIONALITY OF THE APPLICATIONS OR THE SERVICES WILL BE REPAIRED. YOU ASSUME ALL RISK OF LOSS FROM DAMAGE TO ITS COMPUTERS, SOFTWARE, HARDWARE, DRIVES, CODE, DATA, INFORMATION, CONTENT, INTELLECTUAL PROPERTY, AND OTHER PROPERTY OF ANY NATURE WHATSOEVER CAUSED IN ANY MANNER OR BY ANY METHOD FROM MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR OTHERWISE OBTAINED OR SENT USING THE APPLICATIONS. YOU ASSUME ALL RISK OF LOSS CAUSED BY VIRUSES, MALWARE, WORMS, OR OTHER PROGRAMS OR MATERIALS TRANSMITTED BY OR THROUGH THE APPLICATIONS.

18. Privacy. You acknowledge that Mastrow may collect personally identifiable, confidential, proprietary, trade secret, intellectual property, business, financial, and similar information (“Your Proprietary Information”). Except as set forth elsewhere in this Agreement, Mastrow shall not knowingly sell, rent, lease, transfer, or disclose any of Your Proprietary Information unless (i) you consent to such sale, lease, transfer, or disclosure; (ii) sale, lease, transfer, or disclosure by Mastrow is necessary to the provision of the Services; or (iii) as necessary due to your breach of this Agreement. Mastrow may change the provisions of this section as it deems necessary in its sole discretion and shall provide notice of same as mandated by this Agreement.

19. Limitation of Liability. In no event shall Mastrow be liable to you for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim or liabilities to third parties arising from any source, even if a party to this Agreement has been advised of the possibility of damages.

20. Indemnification. In addition to any other indemnification obligations as set forth in this Agreement, you (“the Indemnifying Party”) shall indemnify and hold harmless Mastrow, its officers, directors, employees, shareholders, agents, partners, members, successors, and assigns (each “an Indemnified Person”) from and against any and all demands, claims, causes of action, losses, damages, liabilities, costs, and expenses (including, without limitation, attorneys’ fees) asserted by any third party against an Indemnified Person, resulting from any breach of the Indemnifying Party’s representations and warranties, any breach or non-fulfilment in the performance of the Indemnifying Party’s covenants and agreements, or negligence by the Indemnifying Party or an agent or independent contractor of the Indemnifying Party in connection with the performance of the Indemnifying Party’s covenants and agreements hereunder. Such indemnification obligation shall include without limitation claims and liabilities arising out of the transmission, use, or posting of Content; use of the Applications or the Services; connection to and transmission of Content to or from the Applications; your violations of this Agreement; and your violations of any third party’s rights, including without limitation any third party’s intellectual property rights.

21. Choice of Law. These Terms are governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in clause 6 of these Terms, are only intended to specify the use of California law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in clause 6 or to any arbitrable disputes as defined therein. Instead, as described in clause 6, the Federal Arbitration Act shall apply to any such disputes.

22. Miscellaneous Provisions. Failure of a party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of a party at any time to avail itself of such remedies as it may have for any breach or breaches of such provision. You warrant that you read the foregoing Agreement, understand and acknowledge each of its provisions, have the authority to execute this Agreement on your own behalf as well as on behalf of any entity or third party signatory, and agree on your behalf and on behalf of any entity or third party signatory to be bound by the terms and conditions herein. Mastrow shall not be liable in the event that the performance of any obligation of Mastrow hereunder is rendered impossible by any circumstance beyond its control and not created by its own act or omission, including flood, fire, and other natural disasters, war, riot or social unrest, work stoppage, act of terrorism, and Acts of God. Mastrow shall resume performance pursuant to the provisions of this Agreement upon the abatement of the force majeure. Any notice required to be given to you may be made, in Mastrow’s sole discretion, by posting same conspicuously on the Applications or by email to any email address provided by you. Notice to Mastrow shall be by U.S. Mail to 1 MacArthur Place Suite 200, Santa Ana, CA 92707.