Terms & Conditions of Use

Our website address: https://xlr40.com

This document contains terms and conditions for general use of our website, XLR40 App and terms of Agreement for our programs including assumption of risk, waiver of liability and indemnity agreement. Your initial and continued use of this website, XLR40 APP and training programs declares your initial and continued acceptance of these terms.

Please read this entire document.

Terms

These Terms of Use (this “Agreement”) explains the terms by which paying or non paying subscribers and purchasers (“Customers”) may use the Platform, and other online or mobile services we may provide (collectively, the “Service”). Please read this Agreement carefully before using the Service. By accessing or using the Service, you agree that you have read, understood, and agree to be bound by this Agreement, and to the collection and use of your information as set forth in our Privacy Policy, whether or not you are a registered user of our Service. 

This Agreement applies to all Customers, visitors, users, and others who access the Service and those that access the mobile app our Service creates (collectively, “Users”).

THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

1. HOW WE UPDATE THESE TERMS OF USE
This Agreement is maintained on our website. We reserve the right, in our sole discretion, to modify or replace this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material way, we will update the last updated date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new terms. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Service.

2. USE OF OUR SERVICE
a. Eligibility. Because we respect the rights of children and parents, you may use the Service only if you can form a binding contract, and only in compliance with this Agreement and all applicable local, state, provincial, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. Because we respect the User community, the Service is not available to any Users previously removed from the Service.

b. Your Service. You can browse and enjoy the Service without creating a profile or account. By connecting to the Service with a third-party service like Facebook, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. For more information on the types of information we collect from these third-party services, please read our Privacy Policy below.

c. Your responsibility for your Apps: You are solely responsible for the activity that occurs on our platforms. We will not be liable for your losses caused by any unauthorized use of your account, and you shall be solely liable for the losses due to such unauthorized use.

d. Groups. Users may create or join groups on the Service in order to share articles and other content, and to send messages to other Group members (a “Group”).

e. Your interaction with other Users. You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We will have no liability for your interactions with other Users, or for any User’s action or inaction.

f. Changes to the Service. We’re always innovating and finding ways to provide our Users with new and innovative features and services. Therefore, we may, without prior notice, change the Service; change the pricing of the service; add or delete features of the Service, to you or to Users generally; or create usage limits for the Service.

g. All services require a written 30 day cancellation notice after your initial contract period. 

h. No refunds are given once work begins on your contracted services.

f. All custom work is done at our hourly rate, unless you have a written and signed quote from Traffic Catapult.

3. SHARING YOUR CONTENT
a. Your content. We may allow you to post content on the Service, including comments, photos, blog posts, messages, blog URLs, and other materials. Any content a User submits, posts, displays, or otherwise makes available on the Service, including all Intellectual Property Rights (defined below) therein, is referred to as “User Content.” YOU RETAIN OWNERSHIP OF YOUR USER CONTENT.

b. How we can use your content. You own all of the User Content that you post or publish (“post”) on the Service. You permit us to use your company and/or trade name and logo on our website and other promotional materials.

c. Your responsibility for your content. By uploading, posting, submitting or otherwise disclosing or distributing User Content, you represent and warrant that you own all rights in your User Content and that any User Content you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (defined below) or rights of publicity or privacy. We reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates these provisions. We take no responsibility and assume no liability for any User Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. We are not responsible for any public display or misuse of your User Content.

d. Definition of Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

4. OUR CONTENT
a. Content. Except for User Content, the Service, and all Intellectual Property Rights including therein and related thereto, are our exclusive property (“Exclusive Content”). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license to the Exclusive Content, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the Exclusive Content, including without limitation any materials or content accessible on the Service. Our name and other graphics, logos, designs, page headers, button icons, scripts, and service names are trademarks, trademarks or trade dress protected by the laws of the United States and/or other countries or jurisdictions. Our trademarks and trade dress 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. Use of the Exclusive Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.

b. If we assist the Customer with (including coordinating with a 3rd party) providing enhancement(s) to the Service or Software, creates custom functionality, creates custom plugins, including any and all derivatives thereto (collectively referred to as “Enhancements”), even if the Customer paid us for such Enhancements, such Enhancements will be owned by us and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.

c. The Customer owns or has rights to all intellectual property rights in and to any enhancements in functionality or custom plugins the Customer (or Customer’s representative) make independent of us through capabilities provided by a registered developer account. In such cases, the Customer is solely responsible for all maintenance and support related to such enhancements and plugins, including but not limited to, our updates in Services and Software and iOS and Android updates.

d. Feedback you provide. We value input from our Users, and are always interested in learning of ways we can make the Service better. You may choose to or we may invite you to submit comments, ideas or feedback about the Service, including without limitation about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related Feedback previously known to us, or developed by our employees, or obtained from sources other than you.

f. Analytics. We monitor User service activity.

5. MESSAGING
We may allow you to send messages through our Service to other Users or to third parties (“Messages”). We may send administrative messages to you and other Users.

6. COPYRIGHT POLICY
We require that Users of the Service respect the copyright and other intellectual property rights of all third parties.

7. PRIVACY
We care about the privacy of our Users. You understand that by using the Service you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy below, and to have your Personally Identifiable Information collected, used, transferred to and processed in the United States. We cannot guarantee that unauthorized third parties will never be able to defeat our security measures. You acknowledge that you provide your information at your own risk.

8. INDEMNITY
You agree to defend, indemnify and hold us harmless, along with our parents, subsidiaries, agents, affiliates, customers, vendors, officers and employees from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys fees and costs) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule, or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account.

9. NO WARRANTY
THE SERVICE, INCLUDING ALL CONTENT, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT THE CONTENT ON THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA, INCLUDING USER CONTENT, THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.

WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OUR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

10. THIRD-PARTY LINKS, SITES AND SERVICES
The Service may contain links to other websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. You understand that these Terms of Service and our Privacy Policy below do not apply to your use of such sites. We encourage you to be aware of when you leave the Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.

11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (I) WITH RESPECT TO THE SERVICE OR ANY CONTENT THEREON FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Service is controlled from its facilities in Canada. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with all applicable Canadian and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the Canada or the United States, or are a foreign person or entity blocked or denied by Canada or the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in Canada.

12. TERMINATION OF YOUR ACCOUNT AND THE SERVICE
We may terminate or suspend the Service in whole or in part immediately, without prior notice or liability, for any reason or for no reason, including without limitation, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Service will cease immediately.
All provisions of this Agreement, which by their nature, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

13. GOVERNING LAW AND ARBITRATION
a. Governing Law. You agree that: (i) the Service shall be deemed solely based in Alberta; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Alberta. This Agreement shall be governed by the internal substantive laws of the Province of Alberta, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of a provincial court located in Alberta, Canada  for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as further set forth in the Arbitration provision below.

b. Arbitration. For any dispute with us, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that we are not able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any claims we have for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless we agree otherwise, the arbitration will be conducted in the county where you reside. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights. 

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

14. PURCHASE TERMS

All purchases are final purchases. No refunds are offered.

15. ASSUMPTION OF REISK, WAIVER AND RELEASE OF LIABILITY AND INDEMNITY AGREEMENT  FOR INDIVIDUAL TRAINING (ONLINE AND IN PERSON), XLR40 BOOTCAMP (ONLINE AND IN PERSON), THE CHALLENGE (ONLINE AND IN PERSON), BREAKTHROUGH LEARN TO RUN (ONLINE AND IN PERSON), FITCACHE (ONLINE AND IN PERSON) AND THE BLUE BOOK EXPERIENCE

Your participant initially and continued represents your initial and continued agreement to this entire Agreement.

16. MISCELLANEOUS TRAINING TERMS AND CONDITIONS

Cost for Online Training is charged on a monthly subscription basis.

If the Client wishes to cancel their subscription/training plan they must provide 30 days written notice prior to next scheduled payment date.

If any live class/workout is offered and the Client is unable to attend it will result in forfeiture of that session; no make-up class/session will be offered.

Clients arriving late to any live class/workout may join the remaining scheduled session time and will forfeit any lost time from the beginning of that class. Clients that arrive late are expected to be fully warmed up of their own accord prior to joining in late. 

No subscription/training plan refunds will be issued for any reason, including but not limited to relocation, illness, and missed/unused sessions.

17. RELEASE FROM LIABILITY AND RESPONSIBILITY BREAKTHROUGH LEARN TO RUN

I hereby attest that I am a fully competent individual age 18 years or older. By my initial and continued participation in Breakthrough Learn to Run programming, I release FitCache Inc. and its individual members, employees and volunteers from any and all responsibility or liability for any damages, whether physical or psychological, incurred upon my person, my body, mind or material possessions while I am a participant in Learn to Run now or at any point in the future. I voluntarily sign this waiver and agree to any and all risks that may be associated with this program now and into the future.

I understand that during the participation in the Breakthrough Learn to Run program I may be photographed and/or recorded on video. I hereby give permission for this media to be used by Breakthrough Learn to Run for promotional purposes and understand that, unless otherwise stated, my name and personal information will never be used or disseminated.

I understand that many of the Breakthrough Learn to Run materials may be delivered to me via e-mail or through the XLR40 App. I agree to receive these materials which may include promotional material throughout the program or in the future. I understand that my contact information will not be shared and I can withdraw consent at any time. 

Since individual health conditions vary significantly from person to person it is important to consult a qualified health professional before participating in a program such as Breakthrough Learn to Run. If you have any specific conditions or concerns please have these addressed and have your participation cleared by your healthcare professional. By your participation now and continued participation in the Breakthrough Learn to Run program you agree that appropriate steps have been taken for your individual health care needs and that you have been cleared by a healthcare professional to participate.

18. MISCELLANEOUS TERMS
a. No Agency; Waiver. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

b. Notification. We may provide notifications, whether such notifications are required by law or are for other business purposes, to you via email notice, “push” notification on your mobile device, written or hard copy notice, or through posting of such notice on the Service, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.

c. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with the Service, shall constitute the entire agreement between you and us concerning the Service. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
d. Assignment. This Agreement is not assignable, transferable or sub licensable by you except with our prior written consent. We may transfer, assign or delegate this Agreement and its rights and obligations without consent.

d. Contact. Please contact us with any questions regarding this Agreement.

This Agreement was last updated on: March 9, 2021