Terms of Use

Last revised March 28, 2008

AGREEMENT BETWEEN USER AND FITSKIING, INC.

The web site located at www.FitSkiing.com (the “Web Site”) is comprised of various Web pages operated by FitSkiing, Inc. (“Fitskiing”), a Colorado corporation, from its headquarters in Durham, North Carolina.  
The Web Site is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained in these Terms of Use and otherwise posted on the Web Site by Fitskiing. Your use of the Web Site constitutes your agreement to all such terms, conditions, and notices in effect at the time of your use.

AGE RESTRICTION AND PASSWORDS

This Site is intended for use by persons who are at least 18 years old, or the legal age required to form a binding contract in your jurisdiction if that age is greater than 18. By using the Web Site, you represent and warrant that you are at least 18 years old and of legal age to form a binding contract.  If you are granted access to any portion of the Web Site requiring a password or other special permission, your right of access may be used only by you.  You are responsible for maintaining the security of any password provided to you.

MODIFICATION OF THESE TERMS OF USE

FitSkiing reserves the right to change the terms, conditions, and notices under which the Web Site is offered, including but not limited to the charges associated with the use of features of the Web Site.  Modifications will become effective upon posting on the Web Site.  We encourage you to check these Terms of Use regularly to determine if changes have been made since your last visit.

MERCHANTS AND LINKS TO THIRD PARTY SITES

The Web Site contains advertisements, offers, or other links to other websites and resources of third parties that FitSkiing does not control. Advertisements, as well as information on such websites or other information provided by third parties, may or may not be or remain wholly accurate. You acknowledge and agree that FitSkiing is not responsible or liable for (i) the availability or accuracy of such sites or resources; or (ii) the content, advertising, or products or services on or available from such sites or resources. The inclusion of any link on the Web Site does not imply an endorsement of the linked web site by FitSkiing or any affiliation of the operators of that web site with FitSkiing. You use the links at your own risk.

FitSkiing’s Privacy Policy is applicable only when you are on the FitSkiing Web Site. Once you choose to link to another website, you should read and understand that website's privacy statement before disclosing any personal information.

Your correspondence or business dealings with, or participation in promotions of, third party merchants or advertisers that are found on or through the Web Site or which provide links on the Web Site, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such merchant or advertiser. You waive any claim against FitSkiing and agree to hold FitSkiing harmless from any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such merchants or advertisers on the Web Site.

NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Web Site, you warrant to FitSkiing that you will not use the Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Web Site in any manner which could damage, disable, overburden, or impair use of the Web Site or interfere with any other party's use and enjoyment of the Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Web Site.

USE OF COMMUNICATION SERVICES

The Web Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services").  You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:

• Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
• Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information. Upload files that contain software, images, or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents.
• Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
• Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
• Conduct or forward surveys, contests, pyramid schemes or chain letters.
• Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
• Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
• Restrict or inhibit any other user from using and enjoying the Communication Services.
• Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
• Harvest or otherwise collect information about others, including but not limited to e-mail addresses, without their consent.
• Violate any applicable laws or regulations.

YOU UNDERSTAND AND ACKNOWLEDGE THAT FITSKIING DOES NOT REGULARLY MONITOR THE ACCURACY OR RELIABILITY OF WEB SITE CONTENT.

FitSkiing has no obligation to monitor the Communication Services. However, FitSkiing reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. FitSkiing further reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

FitSkiing reserves the right at all times to disclose any information about you or your use of the Web Site as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FitSkiing's sole discretion.

You should always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. FitSkiing does not control or endorse the content, messages or information found in any Communication Service and, therefore, FitSkiing specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts of any Communications Service are not authorized FitSkiing spokespersons, and their views do not necessarily reflect those of FitSkiing.

Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.

MATERIALS PROVIDED TO FITSKIING OR POSTED ON THE WEB SITE

FitSkiing does not claim ownership of any materials that you provide to FitSkiing (including feedback and suggestions) or that you post, upload, input or submit to the Web Site or its associated services (collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting your Submission you are granting FitSkiing, its affiliated companies and sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.

No compensation will be paid with respect to the use of your Submission, as provided in these Terms of Use. FitSkiing is under no obligation to post or use any Submission you may provide and may remove any posted Submission from the Web Site at any time in FitSkiing's sole discretion.

By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions and to grant rights to Fitskiing and its affiliated companies and sublicensees as described above.

PROTECTION OF SITE CONTENT

The Web Site and its contents are protected by intellectual property laws and you agree to respect such laws.  These laws include, but are not limited to, copyright laws and international treaties concerning copyrights.  FitSkiing grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights FitSkiing has in the Web Site content, to privately display the content on your computer for your own personal, noncommercial purposes, and to print a reasonable number of copies of the content as needed for that use. FitSkiing reserves all other rights in the content, on its own behalf and the behalf of its licensors (including contributors), and FitSkiing does not, directly or by implication, by estoppel or otherwise, grant any other rights or licenses to you under these Terms of Use. Except as expressly stated in this paragraph, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works of any portion of the Web Site without express prior written consent from FitSkiing or the contributor of that content or other third-party owner of the rights in that content (if any). You agree not to reverse engineer any content consisting of downloadable software, unless specifically authorized by FitSkiing or the third-party owner of the rights in that content (if any) or otherwise permitted by law.

PRIVACY POLICY, MEDICAL DISCLAIMER AND OTHER NOTICES

Notices posted on the Web Site by FitSkiing, including but not limited to the Privacy Policy and Medical Disclaimer, are incorporated into and form a part of these Terms of Use. LIABILITY DISCLAIMER
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE WEB SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION PROVIDED ON THE WEB SITE. FITSKIING AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE WEB SITE AT ANY TIME. ADVICE RECEIVED VIA THE WEB SITE SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.

FITSKIING AND ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE WEB SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. FITSKIING AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FITSKIING OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE WEB SITE, WITH THE DELAY OR INABILITY TO USE THE WEB SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE WEB SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEB SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FITSKIING OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEB SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEB SITE.

CUSTOMER SUPPORT

You acknowledge that FitSkiing has no obligation to provide you with customer support of any kind. However, FitSkiing may provide you with customer support from time to time, at its sole discretion.  Requests for support should be addressed to admin@fitskiing.com.

NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

FitSkiing respects the intellectual property of others. It is FitSkiing’s policy to respond expeditiously to claims of copyright and other intellectual property infringement. FitSkiing will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, FitSkiing may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. FitSkiing will terminate access for users who are repeat infringers.

Procedure for notifying FitSkiing of copyright infringement: To provide FitSkiing notice of an infringement, you must provide a written communication to the attention of "DMCA Infringement Notification Dept." care of abuse@fitskiing.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is infringing your copyright.  FitSkiing's designated Copyright Agent to receive notifications of claimed infringement is: Andrew Hooge, 415 Intern Way, Durham, NC 27713, email: abuse@fitskiing.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to FitSkiing customer service through admin@fitskiing.com. You acknowledge that if you fail to comply with all of the requirements of this paragraph, your DMCA notice may not be valid.

Procedure for providing FitSkiing with counter-notification: If FitSkiing removes or disables access to content in response to an infringement notice, FitSkiing will make reasonable attempts to contact the owner or administrator of the affected site or content. If you feel that your material does not constitute infringement, you may provide FitSkiing with a counter-notification by written communication to the attention of "DMCA Counter-Notification Dept." at abuse@fitskiing.com that sets forth the necessary information required by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, you should consult an attorney.

TERMINATION/ACCESS RESTRICTION

FitSkiing reserves the right, in its sole discretion, to terminate your access to the Web Site and the related services or any portion thereof at any time, without notice.

ELECTRONIC TRANSACTIONS

You agree that all of your transactions with or through the Web Site may, at the option of FitSkiing, be conducted electronically from start to finish. If FitSkiing decides to proceed non-electronically, those services will still be governed by the remainder of these Terms of Use unless you enter into different terms on a form provided by FitSkiing. If the law allows you to withdraw this consent or if FitSkiing is ever required to deal with you non-electronically, FitSkiing reserves the right to charge or increase fees and you agree to print or make an electronic copy of these Terms of Use and any other contract or disclosure that we are required to provide to you.

NOTICES AND CONTACT INFORMATION

Except as may otherwise be provided in these Terms of Use, FitSkiing will give you any notices by posting them on the Web Site. You authorize FitSkiing to send notices (including without limitation notice of subpoenas or other legal process, if any) via electronic mail as well if FitSkiing decides, in its sole discretion, to do so. You agree to check the Web Site for notices, and that you will be considered to have received a notice when it is made available to you by posting on the Web Site. FitSkiing may provide notice to any e-mail or other address that you provide if you register for any Web Site service. You agree to keep your address current and that notice provided by FitSkiing to the address that you have most recently provided will constitute effective notice.

To the maximum extent permitted by law, this agreement is governed by the laws of the State of North Carolina, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in Durham County, North Carolina, U.S.A. in all disputes arising out of or relating to the use of the Web Site. Use of the Web Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FitSkiing as a result of this agreement or use of the Web Site. FitSkiing's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of FitSkiing's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Web Site or information provided to or gathered by FitSkiing with respect to such use. If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect. Unless otherwise specified herein, these Terms of Use constitute the entire agreement between you and FitSkiing with respect to the Web Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and FitSkiing with respect to the Web Site. A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to use of the Web Site to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and FitSkiing agree that the definitive version of these Terms of Use is the version in the English language.

ADDITIONAL LEGAL NOTICES

NOTICE OF AVAILABILITY OF FILTERING SOFTWARE

Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Children's Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).

NOTICE: NO HARVESTING OR DICTIONARY ATTACKS ALLOWED
FITSKIING WILL NOT GIVE, SELL, OR OTHERWISE TRANSFER ADDRESSES MAINTAINED BY FITSKIING TO ANY OTHER PARTY FOR THE PURPOSES OF INITIATING, OR ENABLING OTHERS TO INITIATE, ELECTRONIC MAIL MESSAGES EXCEPT AS AUTHORIZED BY APPROPRIATE FITSKIING PERSONNEL OR POLICIES. EXCEPT FOR PARTIES AUTHORIZED TO HAVE ADDRESSES MAINTAINED BY FITSKIING, PERSONS MAY VIOLATE FEDERAL LAW IF THEY: (1) INITIATE THE TRANSMISSION TO FITSKIING COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.

NOTICE RE TRADEMARKS

FITSKIING, MY SKI COACH and other FitSkiing graphics, logos, designs, page headers, button icons, scripts, and service names used in connection with the Site are registered trademarks, trademarks or trade dress of FitSkiing or its licensors in the U.S.A. and/or other countries. Trademarks and trade dress of FitSkiing or its licensors appearing on the Web Site may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.  Trademarks relating to products or services of third parties mentioned on the Web Site belong to those third parties.