Terms of Use

The effective date of this Agreement is December 4, 2012

This is one of the websites of Twin Oaks Software Development, Inc. (“Twin Oaks,” “we,” “us” or “our”), which provides payment processing and related services, and services accounts, for fitness facilities and health clubs, among others (each, a “Club”). By accessing or using any features of any of the websites owned or operated by Twin Oaks and which contain a link to these Terms of Use (collectively, and together with all services available through such websites, the “Site”), including without limitation becoming a member of a Club, submitting or changing your personal information, making a payment, or scheduling and paying for specialty services at your Club, you agree to be bound by these Terms of Use and by our Privacy and Security Policy (click here to see our Privacy and Security Policy). All visitors to and users of any aspect of the Site are legally bound by these Terms of Use and by our Privacy and Security Policy. We reserve the right to modify the Terms of use at any time without prior notice to you. Therefore, we recommend that you read these Terms of Use carefully each time you use this Site. If you are not willing to be bound by these Terms of Use, you may not access or use this Site.

Eligibility

The Site is not to be used by anyone under the age of 18. By using this Site, you represent and warrant that you are 18 years of age or older.

Changes to the Site

You agree and understand that the Site, including any and all features available via the Site and any User Content (as defined below), may be modified by us, in our sole discretion, at any time without prior notice. Unless expressly stated otherwise, any new features, new services, enhancements or modifications to the Site implemented after your initial access to the Site shall be subject to these Terms of Use. We do not actively monitor, and undertake no obligation to monitor or modify, any reviews, information, content, data, text, links to third party websites, User profile information, sounds, photographs, graphics, video, messages or other materials made available via the Site by any User (all such items provided by Users, collectively, “User Content”). Nonetheless, we reserve the right to investigate and take appropriate action, including legal action, in our sole discretion, against anyone who violates these Terms of Service, including without limitation, by removing any User Content posted in violation of these Terms of Service, terminating the registration of such violators or blocking such violators’ use of the Site.

Registration

In order to access some features of the Site, you may be required to register and to select a password and user name, which shall consist of an email address you provide and a screen name (“User ID”). If you register, you agree to provide us with accurate and complete registration information, and to inform us immediately of any updates or other changes to such information. For example, you may not: (i) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person, or (ii) use as a User ID a name subject to any rights of a person other than yourself without appropriate authorization. Failure to comply with the terms of this paragraph shall constitute a material breach of these Terms of Use, which may result in immediate termination of your account. In addition, we reserve the right to refuse registration of, or cancel a User ID in our discretion.

Security

You shall be responsible for maintaining the confidentiality of your password, and you are fully responsible for all activities that occur under your User ID and password, whether or not you authorize such activities. Any User ID and password for your access to the Site shall be for your personal, non-commercial use only. You agree to (a) immediately notify us of any unauthorized use of your User ID or password of which you become aware, and (b) ensure that you exit from your account at the end of each session.

Restrictions on Rights to Use

Without limiting the generality of any other provisions of these Terms of Use, you agree you shall not (and you agree not to allow any other individual or entity to):

  • download, modify, reproduce, adapt, translate, reverse engineer, create derivative works based upon, publicly display, sell, rent, license, or in any way commercially exploit any portion of the Site, except and to the extent expressly permitted under these Terms of Use;
  • remove any copyright, trademark or other proprietary rights notice contained in or on the Site;
  • use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Site;
  • reformat or frame any portion of any Web pages that are part of the Site;
  • create user accounts by automated means or under false or fraudulent pretenses;
  • transmit or upload to the Site any item containing or embodying any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Site, any other Web site, or any computer or other device or system, or the enjoyment of the Site by any User;
  • use the Site to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes);
  • submit to the Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity; or otherwise use the Site to transfer or store illegal material, including any material deemed threatening or obscene;
  • take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the Site or the IT infrastructure used to operate and make the Site available;
  • use the Site, intentionally or unintentionally, to violate any applicable local, state, federal or international law.
We may change, suspend, or discontinue any aspect of the Site at any time without prior notice.

Copyrights

If you believe any aspect of the Site infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. §512) by providing the following information:

  1. A description of the copyrighted work that you claim has been infringed;
  2. A description of where the material that you claim is infringing is located on the Site;
  3. Your address, telephone number and email address;
  4. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
  5. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright at issue or are authorized to act on the copyright owner’s behalf; and
  6. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.

Our designated copyright agent for notice of claims of copyright infringement on the Site may be reached at the following address:

Copyright Agent: Twin Oaks Software Development, Inc. Attn: GM, 1463 Berlin Turnpike, Berlin, CT 06037

Or by email: webadmin@tosd.com

Privacy

Use of the Site is also governed by our Privacy and Security Policy which we encourage you to review.

Ownership

As between you and us, the Site, including all photographs, images, text, graphics, icons, audio clips, software and other aspects thereof, all improvements or modifications thereof, all derivative works based thereon, and the collection, arrangement, and assembly of the Site, including all copyrights, trademarks, and other intellectual property or proprietary rights in the foregoing, are owned by us or our licensors. Nothing contained in these Terms of Use shall be deemed to grant to you or any other User any rights, title or interest in or to any copyright, trademark or other proprietary right of ours or any of our licensors.

Any trademarks, service marks, and other marks and indicators of source or origin that are displayed on the Site are the proprietary property of Twin Oaks Software Development, Inc. or our respective licensors, as applicable. None of such marks may be used in connection with any other product or service, in any manner that is likely to cause confusion among consumers, or to disparage or discredit the owner of such mark or its affiliates. Any trademarks of third parties that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Site without the express written permission of the trademark owner.

Nothing in these Terms of Use shall be deemed to grant to you or any other User any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of ours.

Potential Disruption of Service.

Access to the Site may from time to time be unavailable, delayed, limited or slowed due to, among other things:

  • hardware failure, including among other things failures of computers (including your own computer), servers, networks, telecommunication lines and connections, and other electronic and mechanical equipment;
  • software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content;
  • overload of system capacities;
  • damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters;
  • interruption (whether partial or total) of power supplies or other utility of service;
  • strike or other stoppage (whether partial or total) of labor;
  • governmental or regulatory restrictions, exchange ruling, court or tribunal orders or other human intervention; or
  • any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Twin Oaks.

Disclaimer

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, INFORMATION, ADVICE, SERVICES, PRODUCTS, AND OTHER MATERIALS CONTAINED IN OR DESCRIBED ON THE SITE, IS ENTIRELY AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR THIRD PARTY SERVICE PROVIDERS MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND/OR USE OF THE SITE, AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

IN ADDITION, WE AND OUR THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT THE INFORMATION AND CONTENT ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM USE OF, INABILITY TO USE, OR RELIANCE ON ANY ASPECT OF THE SITE, AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SITE. FURTHER, NEITHER WE NOR OUR THIRD PARTY SERVICE PROVIDERS MAKE ANY REPRESENTATIONS AND WARRANTIES THAT THE SITE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM US OR THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

Some states or other jurisdictions do not allow the disclaimer or exclusion of implied warranties, so the above exclusions or disclaimers may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.

Twin Oaks Software Development, Inc. reserves the right to refuse to provide Services, as defined in the Privacy and Security Policy, to you if providing the Services in your State is restricted or prohibited.

Risk of Use.

You understand and agree, by your access to and use of the Site, that if you download and/or otherwise obtain material or data through the use of this Site, you do so at your own discretion and risk. You further understand that you will be solely responsible for any damage or injury to your computer system (including but not limited to any networks, hardware or software), or the loss of data which may result from the download of such material or data. You further understand that we have no obligation to scan or otherwise protect you or any other User from any risk of viruses, Trojan horses, worms, time bombs, cancelbots, corrupt files, or any other similar programs, software or code which may have the effect of damaging or impairing the computer, software, network or systems of you or any other person.

Limitation on Liability

IN NO EVENT SHALL TWIN OAKS SOFTWARE DEVELOPMENT, INC. OR ITS RESPECTIVE AFFILIATES, OR THE SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY OF THE FOREGOING, BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, UNAVAILABILITY OF, INABILITY TO USE OR IMPROPER USE OF THE SITE, SERVICES, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SITE, OR THE DISCLOSURE OR MISUSE OF ANY USER’S PERSONAL INFORMATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.

IN ANY EVENT, TWIN OAKS SOFTWARE DEVELOPMENT, INC.’S MAXIMUM LIABILITY IN RESPECT OF THE SITE OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO THE SERVICES AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SITE, IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS ($100.00). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

Indemnity

You agree to indemnify and hold Twin Oaks Software Development, Inc. and its respective affiliates, third party service providers, licensors, directors, officers, members, managers, employees, agents, and representatives, harmless from and against any losses, costs, expenses or damages of any nature whatsoever (including attorneys fees and court costs) arising from any claim, cause of action, suit or demand of any third party due to, arising out of or related to (i) your access to the Site, (ii) your use of the Site, (iii) your violation of these Terms of Use, (iv) any use of your User ID or password by you or any third party, or (v) the infringement or other violation by you, or any third party using your account or User ID or password, of any intellectual property or other right of any person or entity.

Third Party Advertisements and Links to and from Third Party Sites

We may display on the Site advertisements from third parties, such as banner advertisements and pop-up texts, and links to and from third party sites, including your Club. We are not responsible for the content of such advertisements or links, any products, services or other materials relating to such advertisements, any linked site, or any link contained in a linked site. The display of any advertisement or link does not imply endorsement by us of the advertisement or linked site or any content therein. IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE SITE, ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD-PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE. You are strongly encouraged to review the Privacy Policies and other Legal Agreements of each and every website you visit. We have no control over third party websites, and make no representation or warranty whatsoever about any other website or the contents thereof.

Changes to Terms of Use

We reserve the right to make changes at any time to these Terms of Use. Any modifications to the Terms of Use will be effective upon posting. You agree to review the Terms of Use periodically so that you are aware of any modifications. Your continued use of the Site after any modifications indicates your acceptance of the modified Terms of Use.

Disputes and Applicable Law

Any dispute arising out of or relating to the Site, or use of or inability to use the Site, or consequence of using the Site, will be submitted to confidential arbitration in Hartford, Connecticut, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Connecticut, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms of Use shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Use shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration involving any other party subject to these Terms of Use, whether through class arbitration proceedings or otherwise.

By visiting the Site, you agree that all applicable federal laws of the United States and the laws of the State of Connecticut, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort as described in the above paragraph.

Miscellaneous

No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use, and you do not have any authority of any kind to bind Twin Oaks Software Development, Inc. in any respect whatsoever. We may provide you with notices, including those regarding changes to these Terms of Use, by email, or postings on the Site. These Terms of Use, which shall be deemed accepted by you upon your use of the Site, constitute the entire agreement among you and Twin Oaks Software Development, Inc. regarding use of the Site. Twin Oaks Software Development, Inc.’s failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of the enforcement of such right or provision. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and enforceable. These Terms of Use are not assignable, transferable or sub licensable by you, except with our prior written consent. The headings in these Terms of Use are for convenience only and have no legal or contractual effect. Terms of Use include and incorporate the Privacy and Security Policy for the Site as each may be changed from time to time by the posting of notices, and the phrase “Terms of Use” means and includes the Privacy and Security Policy.

Contact and Violations

Please contact us with any questions regarding these Terms of Use. Please report any violations of the Terms of Service to webadmin@tosd.com.