TERMS OF USE

Welcome to the Pen Name Website, which is part of Born Fitness, LLC (collectively “Born Fitness”).  Please read these terms and conditions carefully.  By your use of, and registering with, this Website, you agree to be bound by, and comply with, the terms and conditions below without limitation or qualification.  These terms and conditions are, from time to time, subject to change, modification, addition or deletion without notice in our sole discretion.  We will notify you of amendments to these terms and conditions by posting them to this Website.  If you do not agree with these terms and conditions, immediately cease accessing or using this Website.

Disclaimer of Warranty

THE CONTENT ON THIS WEBSITE IS PROVIDED WITH THE UNDERSTANDING THAT BORN FITNESS IS NOT HEREIN ENGAGED IN RENDERING PROFESSIONAL ADVICE AND SERVICES TO YOU.  INFORMATION ON THIS SITE SHOULD NOT BE RELIED UPON FOR MAKING BUSINESS OR OTHER DECISIONS OR USED AS A SUBSTITUTE FOR CONSULTATION WITH PROFESSIONAL ADVISORS.  ALL CONTENT, MATERIALS, PRODUCTS, SERVICES AND INFORMATION MADE AVAILABLE ON, OR THROUGH, THIS WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.  AS SUCH, YOUR USE OF THIS WEBSITE IS AT YOUR OWN RISK.  SUBJECT TO THE FOREGOING, PEN NAME DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL EXPRESS WARRANTIES EXCEPT THOSE EXPLICITLY MADE IN THESE TERMS AND CONDITIONS.  BORN FITNESS MAKES NO REPRESENTATION THAT THE INFORMATION OR CONTENT CONTAINED ON THIS WEBSITE, YOUR RESULTS IN USING THIS WEBSITE, OR THE SERVICE ITSELF WILL BE ACCURATE, VALID, RELIABLE, COMPLETE, TIMELY OR AVAILABLE OR THAT IT DOES NOT VIOLATE OR INFRINGE THE RIGHTS OF ANY THIRD PARTY.  BORN FITNESS DOES NOT WARRANT THAT THE CONTENT, MATERIALS, PRODUCTS, SERVICES AND INFORMATION MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, THEIR SERVERS, OR E-MAIL SENT FROM BORN FITNESS WILL BE UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES OR OTHER HARMFUL AGENTS OR COMPONENTS, SECURE OR TIMELY.  BORN FITNESS MAKES NO REPRESENTATION AND SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY SITE LINKED TO THIS WEBSITE.  BORN FITNESS DOES NOT WARRANT, GUARANTEE OR ENSURE THE QUALITY OF ANY PRODUCT OR SERVICE PROVIDED BY ANY AFFILIATE OR MERCHANT.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES THAT:  “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

THIS DISCLAIMER BY BORN FITNESS IN NO WAY AFFECTS THE TERMS OF ANY MANUFACTURER’S OR THIRD PARTY SELLER’S WARRANTY, IF ANY, RELATED TO THE GOODS PURCHASED VIA THIS WEBSITE.  TITLE TO GOODS AND MERCHANDISE IS RETAINED BY BORN FITNESS UNTIL THE GOODS AND MERCHANDISE ARE PAID FOR BY THE PURCHASER, AT WHICH TIME TITLE WILL PASS TO THE PURCHASER. 

CERTAIN STATE LAWS INCLUDING, BUT NOT LIMITED TO, THOSE OF THE STATE OF NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Limitation of Liability

YOU AGREE THAT, EXCEPT AS OTHERWISE PROVIDED UNDER APPLICABLE LAWS INCLUDING THOSE OF THE STATE OF NEW JERSEY, NEITHER BORN FITNESS NOR ITS PARENTS, AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS, REPRESENTATIVES, AND THEIR RESPECITVE HEIRS, PREDECESSORS, SUCCESSORS AND ASSIGNS, WHETHER EXISTING NOW OR IN THE FUTURE, SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF, OR RELATED TO, THE USE OF, ACCESS TO, RELIANCE ON, OR INABILITY TO USE, THIS WEBSITE OR ANY OTHER WEBSITE LINKED TO THIS WEBSITE.  THIS WAIVER OF LIABILITY APPLIES TO DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY OR OTHER DAMAGES YOU OR OTHERS MAY SUFFER, AS WELL AS DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST GOODWILL, BUSINESS INTERRUPTION OR THE LOSS OF DATA OR INFORMATION, EVEN IF BORN FITNESS IS NOTIFIED IN ADVANCE OF THE POTENTIAL FOR ANY SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT OR PRODUCT LIABILITY OR OTHERWISE.  

Trademarks and Copyrights

You agree that all content appearing on this Website including, but not limited to, code, trademarks, service marks, trade names, graphics, images, text, audio clips, button icons, digital downloads, data compilations and computer software are the sole property of Born Fitness or its partners and suppliers, and are protected by United States and international copyright laws.  The compilation of any and all content on this Website is the exclusive property of Born Fitness and is protected by United States and international copyright laws.  All software used on this site is the property of Born Fitness or its software suppliers and is protected by United States and international copyright laws.  Users are granted permission to browse and use this Website for its intended purpose, which is for your use only as a consumer.  Any other use including, but not limited to, the reproduction, duplication, modification, distribution, sale, transmission, republication, removal, deletion, addition, framing, display, or performance of the content on this Website or the exploitation in any other manner of any of the content of this Website, in part or in whole, is strictly prohibited.  Except as expressly authorized in writing, the use or misuse of any trademarks, service marks, trade names, logos, text, images, graphics, intellectual property or content from this Website is strictly prohibited.

Born Fitness does not grant, by implication, estoppel or otherwise, any license or right to use any trademark, service mark, trade name or logo, or the content displayed on this Website, without the prior written consent of Born Fitness.  Born Fitness prohibits the use of the Born Fitness logo or other proprietary graphics or trademarks as a link to any Website, unless the creation of such a link is approved in advance, and in writing, by Born Fitness.  Registered and unregistered proprietary information is owned and held by Born Fitness and its licensors and, therefore, you may be liable for infringement or misappropriation or other legal action to the fullest extent of the law if you misuse this Website in any form, either mentioned or unmentioned.

Born Fitness is a trademark or trade dress in the United States and/or other countries.  Born Fitness’s trademarks and trade dress may not be used in connection with any product or service that is not Born Fitness’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Born Fitness.  All other trademarks not owned by Born Fitness that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by, Born Fitness.

Third Party Websites

You agree that Born Fitness encourages you to exercise discretion browsing the internet.  Our Website, products or services may direct you to sites containing information that some people may find offensive or inappropriate.  Any such link is provided solely as a convenience to you.  Born Fitness and its affiliates make no representation or warranty about the legality of any third party Website, nor as to its accuracy, content, products or services.  Any such Website is independent from Born Fitness, and Born Fitness has no control over, or responsibility with respect to, the information provided or activities undertaken by any such Website.  A link between Born Fitness and another Website further does not mean that Born Fitness endorses, recommends, sponsors or approves that Website.  Linking to off-site pages is done at your own risk, requiring you to make your own independent decisions regarding your interactions or communications with any other Website.  Born Fitness expressly disclaims any responsibility or liability for any damage, loss, or injury arising out of the activities of any third party not under the Born Fitness domain, or the goods or services offered by, or the content displayed by, any such third party. 

Use Restrictions

You agree that you will not use this Website for any commercial or political purpose including, but not limited to, advertising, soliciting funds, collecting product prices or selling products; monitoring, gathering or copying content on this Website by using any robot, “bot”, spider, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility or manual process of any kind; framing or utilizing framing techniques to enclose any trademark or other proprietary information including, but not limited to, any images, text, or page layout; using any meta tags or any other “hidden text” utilizing Born Fitness’s name or any trademarks; and engaging in any activity that interferes with a user’s access to the Website or the proper operation of this Website.  You may not modify, reproduce, duplicate, copy, distribute, sell, resell, publish, license, visit or otherwise exploit this Website for any commercial purpose.  You also agree that in using this Website you will not impersonate any person or entity.

Unlawful Conduct

You agree that you are prohibited from posting or transmitting to this Website any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, abusive, harassing, pornographic or profane material, copyrighted material of others, or any other material that could give rise to any civil or criminal liability under the law, as well as anything in contravention of these Terms and Conditions.  Born Fitness reserves the right to seek all remedies available at law and in equity for violations of these Terms and Conditions, including the right to block access from a particular internet address to this Website.

Termination of Use of This Website

You agree that any violation of these Terms and Conditions; the unauthorized use of this Website, content materials and intellectual property; as well as any fraudulent, abusive or otherwise illegal activity, shall be grounds for termination of your right to access, browse and use this Website.  Born Fitness reserves the right, in its sole discretion, to terminate, suspend or restrict your access to this Website and its content and use at any time, with or without notice and without any obligation to refund any portion of fees paid for any product or service.  Should your access to this Website be terminated, you are prohibited from accessing this Website under a new name unless expressly invited to do so by Born Fitness.   

 Product Descriptions

Born Fitness attempts to be as accurate as possible.  However, Born Fitness does not warrant that product descriptions, or other content on this Website, is accurate, complete, reliable, current or error free.  If a product offered by Born Fitness is not as described, your sole remedy is to return it in unused condition.

Limited Availability and Price

In the event a product or service is listed at an incorrect price due to a typographical error, Born Fitness shall have the right to refuse, or to cancel, any orders placed for product or service listed at the incorrect price.  Born Fitness shall have the right to limit the number of items purchased through this Website.  Born Fitness shall have the right to refuse, or to cancel, any order whether or not the order has been confirmed and your credit card charged.  If your credit card has already been charged for the purchase and your order is cancelled, Born Fitness shall immediately issue a credit to your credit card account in the amount of the charge.

Revisions

Born Fitness may, in its sole discretion, and with or without notice to you, make changes to, or discontinue, any aspect of this Website including, without limitation, any content, products, services or prices offered through this Website.  Born Fitness shall not be liable to you or any third party should it exercise this right to modify or discontinue this Website.  Born Fitness also reserves the right to revise, at its sole and absolute discretion, the Terms and Conditions of this Website at any time.  All revisions will be posted on these Terms and Conditions and will be effective immediately upon its posting.  By surfing, using, browsing or purchasing on this Website, you are deemed notified and bound by any changes to these Terms and Conditions.  We encourage users to review these Terms and Conditions each and every time you visit this Website to remain informed of any changes to them.

Electronic Communications

When you visit this Website or send e-mails to us, you are communicating with us electronically.  You consent to receive communications from us electronically.  You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Consent

By accessing, browsing and/or using this Website, you acknowledge that you have read, understood and agree to be bound by these Terms and Conditions and you agree to comply with all applicable laws and regulations.  If you do not agree to these terms then please do not use this Website.

Privacy Policy

The privacy of those who visit our Website is of primary concern to Born Fitness.  We adhere to the highest ethical standards of the industry.  By using this Website, you agree that you have reviewed and accepted our privacy policy.  We automatically gather some data from everyone who visits our Website, while other information is obtained at the discretion of the individual.  Our sole purpose in doing this is to enhance the experience of individual visitors to our Website.  None of this information is shared with outside parties other than companies we employ to perform functions on our behalf, to whom limited data is given as is necessary in order to complete a transaction or to maintain our relationship with you.

Cookies

Born Fitness reserves the right to store information on your computer in the form of a cookie or similar file for purposes of modifying this Website to reflect your preferences.  Cookies allow us to respond to you as an individual, thus allowing us to personalize, customize and quickly process and complete your experience without having to continually request the same basic information from you.  Cookies do not give us access to your computer or any information about you, other than the data you choose to share with us, and are not used to store any personal information such as name, address or payment information.

Disclosure to Authorities

Born Fitness cannot guarantee that all private communications and other personally identifiable information will never be disclosed in ways not otherwise described in these Terms and Conditions.  We reserve the right, and may be forced, to disclose any and all information to government bodies or government officials or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications.  As such, you authorize Born Fitness to disclose any and all information about you to law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate, in connection with any investigation of fraud, intellectual property infringements or other activity that is, or may be, illegal or that may expose Born Fitness to legal liability.

Indemnification

Unless the laws of the State of New Jersey which may provide to the contrary are applicable to you, you agree to indemnify, defend and hold harmless Born Fitness, and all of its parents, affiliates, subsidiaries, officers, directors, owners, employees, agents, contractors, licensors and licensees, attorneys, representatives, and their heirs, predecessors, successors and assigns, whether existing now or in the future, from all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, on account of any claim, suit, action, demand or proceeding made or brought against any such party, or on account of the investigation, defense or settlement thereof, arising in connection with your use or alleged use of this Website or any breach by you of these Terms and Conditions, or the representations, warranties and covenants made by you by your agreeing to these Terms and Conditions.  Born Fitness reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you under this provision and, in such an event, you agree to fully cooperate with Born Fitness’s defense of such matter.  Born Fitness’s assumption of the defense and control of any such matters shall not abrogate any of your obligations hereunder.

DMCA Agent Designation

In the event that you believe that you have a claim for copyright infringement for anything posted on this Website, a takedown notice can be directed to our DMCA agent who can be contacted as follows:  Adam Bornstein, 930 St. Paul Street, Denver, CO 80206, (720) 641-5525adam@bornfitness.com.  

Enforceability, Governing Law and Jurisdiction

These Terms and Conditions constitute the entire agreement between you and Born Fitness with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter.  In the event that any of the terms or provisions of these Terms and Conditions shall be held by a court of competent jurisdiction to be unenforceable, then such terms or provisions shall be construed, as nearly as possible, to reflect the intentions of the parties with the other terms and provisions remaining in full force and effect.

Your access to and use of this Website, and these Terms and Conditions, are governed and construed in accordance with the laws of the State of Colorado, without regard to its conflicts of law provisions.  Any action against Born Fitness arising from, or relating to, your access to and use of this Website and the provisions of these Terms and Conditions must be brought by you exclusively in the state and federal courts located in Boulder County, State of Colorado.  You consent and submit to the exclusive personal jurisdiction and venue of the state and federal courts located in Boulder County, State of Colorado, for the adjudication of all claims by Born Fitness against you arising from, or relating to, your access to and use of this Website and the provisions of these Terms and Conditions.  You agree to waive any and all objections that you may have to Colorado law as the governing law and to the sole and exclusive venue being Boulder County, Colorado.  If you do not agree to these terms then you must immediately cease using this Website and its services.  Your continuing to use this Website and its services shall constitute your consent to these terms.

Born Fitness’s failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Born Fitness in writing.  You acknowledge and agree that you will not seek to litigate any claims against Born Fitness or any of its affiliates, existing now or in the future, on a class action or representative party basis and that you shall pursue such claims solely on an individual basis.

Limitations on Actions

Unless the laws of the State of New Jersey which may provide to the contrary are applicable to you, any action concerning any dispute that you may have with respect to, arising out of, or in connection with this Website must be commenced within one (1) year after the cause of the dispute first arises, and your failure to do so will permanently bar any cause of action that you may have.

Your Representations

You represent that you are 18 years of age or older and that you are not under any legal or other disability which limits your ability to comply with these Terms and Conditions.