Terms of Use

DIGITAL TERMS OF USE

These Digital Terms of Use (together with the Additional Terms set forth herein, “Terms”) set forth the terms and conditions applicable to and governing your access to and use of the websites and applications designed for download and use on mobile, table, smart watch and other personal devices, and all features, functionalities, services and Content (as defined herein) made available through such websites and applications (collectively, “Digital Properties”) made available by Zenergy/Thunder Spring, LLC. By using the Digital Properties, and the features and services made available through the Digital Properties, you are acknowledging that you have read, understand and agreed to these Terms and expressly agree that they form a binding contract between you and Zenergy.

CHANGES TO THE TERMS

These Terms may change as we continue to evolve our business, as well as the Digital Properties or any portion thereof. If we change these Terms, we will post the revised document here and such changes will be effective immediately upon that posting. Your continued use of the Digital Properties constitutes your acceptance of such changes and agreement to be bound by the modified Terms, and so we recommend that you review these Terms periodically when accessing or using the Digital Properties.

These terms were last updated: August 17, 2017

ARBITRATION AGREEMENT AND CLASS ACTION WAIVER

Informal Dispute Resolution Our goal is to do our best to ensure that every experience with Zenergy will exceed your expectations. If that doesn’t happen, we hope you will give us the opportunity to try to address any problem or concern. To do so, please contact us by emailing info@zenergysv.com. When contacting us, we ask that you include your name, address, phone number, and a description of your problem or concern and any specific relief you seek.

Arbitration Agreement

By using the Digital Properties, you and Zenergy agree to submit any and all Disputes (as defined below) to binding arbitration pursuant to the Idaho Uniform Arbitration Action, Title 7, Chapter 9. Arbitration shall be before a private arbitrator selected upon written mutual agreement of the parties, or as Ordered by the District Court, Blaine County, Idaho. By using the Digital Properties you consent to the exclusive jurisdiction of State Courts of Blaine County, Idaho, to address any matter concerning the arbitration of a dispute, including the selection of a mediator.

WE EACH AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

Class Action Waiver

By using the Digital Properties, you agree that the arbitration of any Dispute shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving Zenergy or any other person. You further agree that you, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against Zenergy. We and you agree that the arbitrator of any Dispute between us may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action).

Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

Definition of Dispute

Except as described below, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and Zenergy regarding any aspect of your relationship Zenergy, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, and includes the validity, enforceability or scope of these Terms, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.

However, “Disputes” SHALL NOT include claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. How Will the Arbitration Work?

Either you or Zenergy may initiate arbitration proceedings. The arbitration will be conducted before a single arbitrator. The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration.

Where Will the Arbitration Be Held?

Any arbitration shall be held in Blaine County, Idaho.

ACCESS TO THE DIGITAL PROPERTIES

The Digital Properties are intended for use by adults who reside in the United States, or those adults outside of the United States who, by using the Digital Properties, consent to use of the Digital Properties in accordance with United States laws, these Terms and our Privacy Policy(https://zenergysv.com/privacy) link it broken. If you choose to access the Digital Properties from locations outside of the United States, you do so on your own initiative and at your own risk. By using or attempting to use the Digital Properties, you are representing to Zenergy that you meet the foregoing eligibility requirements and have the legal capacity to enter into and be bound by these Terms.

You are solely responsible for any charges incurred in obtaining access to the Digital Properties, including without limitation charges from your Internet service provider and/or wireless carrier. While you may be able to purchase certain goods or services through the Digital Properties, the Digital Properties themselves are currently provided for free. Zenergy reserves the right to change the nature of this relationship at any time, without prior notice or liability to you. In addition, access to certain Digital Properties or portions thereof may be limited to Zenergy members, as described in the “Your Account” section below.

AVAILABILITY

Zenergy has no obligation to maintain the Digital Properties, in whole or in part, nor does it have any obligation to provide you with any related maintenance or support services. Zenergy reserves the right to render the Digital Properties, in whole or in part, temporarily or permanently unavailable or to otherwise terminate, suspend access to, replace, or modify the Digital Properties or any portion thereof, at any time and for any or no reason, without prior notice or liability to you. Any Content or other information made available on or through the Digital Properties is also subject to change at any time and without prior notice or liability to you.

YOUR ACCOUNT

Some portions of the Digital Properties may invite or require you to create an account and associated log-in credentials, and you may not be able to access certain Content or features, functionalities, or services of the Digital Properties, without creating and logging into such an account. In some instances, the right to create an account may be limited to current members of Zenergy in good standing. You agree to provide true, accurate and current information when creating an account, and you are responsible for updating your account information as needed to ensure it remains current. You are responsible for maintaining the confidentiality of your log-in credentials, and you hereby acknowledge and agree that you are fully responsible and liable for all usage and activities that occurs under your account, whether authorized by you or not. You agree to notify Zenergy immediately if you know of or suspect any unauthorized use of your account or password or any other breach of security related to your account. Notwithstanding anything to the contrary in these Terms, Zenergy reserves the right to deny the creation of, suspend access to or terminate any account(s), or to remove or modify Content, features, functionalities and/or services available to account holders, at any time in its sole discretion and without prior notice or liability to you.

USING THE DIGITAL PROPERTIES

Subject to your compliance with these Terms, Zenergy gives you the limited, non-exclusive, non-transferable, and revocable right to access and use the Digital Properties solely for your personal and non-commercial use. However, Zenergy does not give you any right to, and you hereby agree not to:

• Use the Digital Properties or any portion thereof for any commercial use or for the benefit of any other person or entity, including without limitation by selling, renting, leasing, assigning, transferring, hosting, or otherwise commercially exploiting any Digital Property or any portion thereof.
• Copy, stream, reproduce, duplicate, archive, store (other than standard browser caching), download, publish, modify, make derivative works of, reverse engineer, translate, or distribute any Digital Property or portion thereof by any means, other than as expressly allowed by these Terms or as otherwise clearly contemplated by the features and functionalities of the Digital Properties – for example, by sharing Content through a social media “share” feature or downloading and using the Zenergy mobile app. You may also print or save to your computer, phone or personal device a reasonable number of pages or Content from the Digital Properties, but solely for your own personal, internal and non-commercial purposes.
• Remove, alter, bypass, avoid or circumvent any copyright, trademark or other proprietary notice, digital rights management mechanisms or other content protection measures included in or associated with the Digital Properties or any Content. Similarly, you may not modify, remove, or otherwise interfere with any embedded player that may made available in connection with certain Content.
• Use any software robots, spiders, crawlers, or similar data mining, gathering or extraction tools or methods, whether automated, programmed or manual, including without limitation to access, acquire, copy, monitor or make submissions through any portion of the Digital Properties.
• Knowingly or intentionally take any other action that may impose an unreasonable burden or load on the Digital Properties or its servers and infrastructure. Any unauthorized use by you, or otherwise under your account or on your computer or personal device, of the Digital Properties any portion thereof will immediately terminate the limited rights granted to you under these Terms, and such termination will be without prejudice to any other right or remedy Zenergy may have under applicable law or in equity.

INTELLECTUAL PROPERTY

As between you and Zenergy, Zenergy owns the Digital Properties and all content displayed or made available on or through, or otherwise included in, the Digital Properties, including without limitation all text, video clips, audio clips, graphics, trademarks, service marks, trade names, logos, icons, images, data, information, code and software, regardless of whether registered or unregistered, and any combinations and compilations thereof (collectively, “Content”). The Digital Properties and Content, including the selection, coordination, arrangement and enhancement of Content and the design, layout and “look and feel” of each Digital Property, constitute valuable intellectual property of Zenergy, and are protected by applicable copyright, trademark and other applicable intellectual property rights and laws.

The Digital Properties and Content are licensed, not sold, to you, and your limited rights to access and use the Digital Properties and Content are conditioned upon your compliance with these Terms. No act of downloading or copying from, or otherwise using, the Digital Properties, even with Zenergy’s permission, will transfer any title, interest or right in or to any Digital Property or Content to you. Zenergy hereby expressly reserves all rights not expressly granted in and to the Digital Properties and Content.

COMMENTS; NO UNSOLICITED IDEAS

We welcome your feedback regarding the Digital Properties, as well as our club locations, services, products and other offerings. However, please understand that any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, “Comments”) posted on, submitted through, or otherwise sent to Zenergy as a result of, the Digital Properties shall become and remain the exclusive property of Zenergy. Your posting, submission or sending of any such Comments shall constitute an assignment to Zenergy of all worldwide right, title and interest, including all intellectual property rights, in and to the Comments, and Zenergy will be entitled to use, reproduce, disclose, publish, distribute and otherwise exploit any Comments for any purpose whatsoever, without restriction or liability and without notifying or compensating you in any way, and you hereby agree to waive any and claims against Zenergy in connection with the foregoing. All Comments will be treated as non-confidential, and therefore you agree not to post, submit or send to Zenergy, on an unsolicited basis, any ideas, confidential information, proprietary information or other Comments that you do not wish to assign to Zenergy, including without limitation ideas for new or improved products, services, technologies, marketing, advertisements promotions or other services, products or offerings and any original creative materials such as stories, videos, computer code, images or artwork (all of the foregoing, collectively, “Unsolicited Ideas”). Please understand that while we sincerely appreciate the enthusiasm and interest in our company and brand, it is the long-standing policy of Zenergy to not accept or consider any Unsolicited Ideas. We employ a talented staff of employees, and have existing relationships with outside consultants or vendors, who may be working on the same or similar ideas. The intent of this policy against the acceptance consideration of Unsolicited Ideas is to avoid the possibility of future misunderstandings when projects developed by our staff, consultants or vendors might seem to others to be similar to your own work. If, despite this policy, you nonetheless chose to post, submit or otherwise send to Zenergy any Unsolicited Idea, by doing so you acknowledging and agreeing that: (1) you are not posting, submitting or sending any confidential or proprietary information; (2) Zenergy has no obligation to review or use the Unsolicited Idea or to keep it confidential; and (3) Zenergy will consider the Unsolicited Idea as a Comment assigned to and owned by Zenergy, which it may use, reproduce, disclose, publish, distribute or otherwise exploit for any purpose whatsoever, without restriction or liability and without notifying or compensating you, and you hereby agree to waive any and claims against Zenergy in connection with the foregoing.

PRIVACY

We use the personal information collected through the Digital Properties in an effort to fulfill our commitment to offering and providing unparalleled member service. Please visit our Privacy Policy (https://zenergysv.com/privacy) so that you may understand how we collect, share and use information gathered from or through our access to and/or use of the Digital Properties. By using any Digital Property, you also agree to the terms of our Privacy Policy and expressly consenting to our collection, use and disclosure of your personal information, as described therein.

THIRD PARTY SITES

For your convenience, the Digital Properties may contain links to websites, downloadable apps, or other digital properties, products or services of other persons or entities, including without limitation social media networks (collectively, “Third-Party Sites”). When you click on one of these links, you are leaving the Digital Properties and accessing a Third-Party Site over which Zenergy has no control. Including a link to a Third-Party Site is not and should not be viewed as an endorsement by, or affiliation with, Zenergy of that Third-Party Site, its operator or its contents, services and/or offerings. Your rights and obligations when accessing and using these Third-Party Sites are not governed by these Terms (or our Privacy Policy) and will instead be governed by the terms and policies of those Third-Party Sites, and we encourage you to carefully read those terms and policies of these Third-Party Sites, as their practices may differ from ours. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZENERGY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY SITES AND HAS NO RESPONSIBILITY FOR SUCH THIRD-PARTY SITES OR THE CONTENTS, FEATURES OR OPERATION OF SUCH THIRD-PARTY SITES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO ACCESS AND USE ANY THIRD-PARTY SITE IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENERGY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF OR RELIANCE ON ANY THIRD-PARTY SITES.

HEALTH DISCLAIMERS

Zenergy is not a health care or medical provider. The Digital Properties and the features, functionalities, services and Content made available therein, including without limitation any advice, information, workouts, exercises, regimens, nutritional plans, recipes or other materials (collectively, the “Fitness Features”), are provided for general informational purposes only, and do not constitute medical advice. The Fitness Features are not intended to be relied upon for determining the state of your health or in the diagnosis of any medical conditions and are not, and should not be used as, a substitute for a professional medical evaluation. We advise you to see your physician on a regular basis and to seek their advice prior to engaging in any fitness or nutrition regimen or if you have any questions or concerns regarding your health and fitness regimen or for the diagnosis of specific medical conditions.

Zenergy is not liable or responsible for any consequences of you having read, used or relied upon any Fitness Features. By using any Fitness Feature, you acknowledge and understand that it may involve or provide information regarding strength, flexibility, aerobic, cardio, meditation, regeneration or other exercises, all of which can be potentially hazardous activities. You should consult with your doctor prior to using any Fitness Feature. If you choose to use any Fitness Features, you should be in good health and have no disability, impairment, injury, disease or ailment preventing you from engaging in active or passive exercise or which would cause increased risk or injury or adverse health consequences as a result of using such Fitness Features, and you hereby assume all risks associated with using such Fitness Features. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS, OR DISCOMFORT, WHEN USING ANY FITNESS FEATURE, STOP AND CONSULT YOUR PHYSICIAN OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZENERGY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE FITNESS FEATURES AND IS NOT RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON ANY SUCH FITNESS FEATURES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO RELY ON AND/OR USE ANY FITNESS FEATURE IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENERGY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF ANY FITNESS FEATURE.

GENERAL DISCLAIMERS

While we endeavor to provide the best digital experience we can, including without limitation by offering accurate and current Content, we cannot and do not guarantee that the Digital Properties or any portion thereof will always be fully-functional, current or accurate. For up-to-date information on club hours, class schedule changes, contact information and any other information regarding Zenergy health club, its operations, programs, and/or offerings, please contact Zenergy at our corporate offices, as described in the “Contact Us” section below. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE DIGITAL PROPERTIES IS AT YOUR SOLE RISK, AND THAT THE DIGITAL PROPERTIES, AND ALL ASPECTS THEREOF, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZENERGY MAKES NO REPRESENTATIONS OR WARRANTIES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION: (1) WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES THAT THE DIGITAL PROPERTIES WILL MEET YOUR REQUIREMENTS, OR OPERATE WITH THE DEVICES, HARDWARE OR SOFTWARE YOU USE; OR (3) WARRANTIES THAT YOUR ACCESS TO AND USE OF THE DIGITAL PROPERTIES WILL BE AVAILABLE, UNINTERRUPTED, CURRENT, OR FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR CODE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.

LIMITATIONS OF LIABILITY

You agree that, to the maximum extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with the Digital Properties is to stop using and, where applicable, uninstall the Digital Properties.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ZENERGY, ITS PARENTS, SUBSIDIARIES OR OTHER AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SERVICE PROVIDERS, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ZENERGY PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF USE, LOST DATA, LOST BUSINESS OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE DIGITAL PROPERTIES, OR THESE TERMS.

IN ADDITION, IF AND TO THE EXTENT ZENERGY IS LIABLE FOR ANY DIRECT DAMAGES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE DIGITAL PROPERTIES, OR THESE TERMS, THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ZENERGY FOR SUCH DIRECT DAMAGES WILL BE LIMITED TO TEN DOLLARS ($10.00 USD). Except for any liability of Zenergy under the forgoing paragraph, you acknowledge and agree that the other Zenergy Parties will have no liability to you for any direct damages arising out of the Digital Properties or these Terms.

INDEMNIFICATION

You agree to defend, indemnify and hold the Zenergy Parties harmless from and against any claims, liabilities, losses, damages, costs and expenses (including without limitation reasonable attorneys’ fees), arising out of or in connection with: (1) your access to and/or use of the Digital Properties or any portion thereof; (2) your Comments or Unsolicited Ideas; (3) your failure to comply with these Terms or with any applicable law, rule or regulation; (4) your infringement, misappropriation or violation of the Digital Properties or Content or of any third party’s intellectual property right; or (5) any activity occurring by or through your account, whether taken by you or another person accessing or using your account, with or without authorization. Zenergy will use reasonable efforts to notify you of any claim, action or proceeding subject to the foregoing paragraph once it becomes aware of it, but any failure to provide you with notice shall not limit your indemnification obligations unless you can establish actual prejudice resulted from such failure. Zenergy reserves the right, at your expense, to assume the exclusive defense and control of any claim, action or proceeding for which you are required to provide indemnification, and you agree to cooperate with our defense of these claims. You may not settle any claims, actions or proceedings for which you are required to provide indemnification, without Zenergy’s prior written consent.

TERMINATION

You may terminate these Terms at any time by ceasing to access and use the Digital Properties and, where applicable, uninstalling the Digital Properties. Please understand, however, if you subsequently decide to resume accessing and using any of the Digital Properties, you will again be bound by the then-current Terms. We may terminate these Terms, or otherwise terminate, suspend or restrict your access to and use of the Digital Properties, in whole or in part, at any time and without prior notice or liability to you, for any reason, including without limitation your failure to comply with any portion of these Terms.

However, even after these Terms have been terminated, the sections titled “Arbitration Agreement and Class Action Waiver,” “Intellectual Property,” “Comments; No Unsolicited Ideas,” “Privacy,” “Disclaimers,” “Limitations of Liability,” “Indemnification,” “Governing Law,” “General,” “Gift Card Terms and Conditions,” “Promotional Gift Card Terms and Conditions,” “Personal Training Terms and Conditions” and any other provision which by its nature is intended to survive, will survive that termination.

GOVERNING LAW

These Terms, the Additional Terms below, and your access to and/or use of the Digital Properties, will be governed by and construed in accordance with the laws of the State of Idaho, without regard to its conflict of laws principles. Except as provided above as to those Disputes you or Zenergy submit to binding arbitration pursuant to the Idaho Arbitration Act, all claims, disputes and matters arising hereunder shall be submitted exclusively to the jurisdiction of the state courts of Blaine County, Idaho and you and Zenergy each hereby irrevocably consent to the jurisdiction of such courts and waives all objections thereto.

GENERAL

These Terms, together with our Privacy Policy, the Additional Terms below, and any other terms and conditions that may be made available with respect to certain Digital Properties or portions thereof, constitute the complete and exclusive agreement between you and Zenergy concerning your access to and use of the Digital Properties, and supersede and govern over all prior proposals, agreement or other communications. Nothing in these Terms shall be construed as creating any agency, partnership or other form of joint enterprise between you and Zenergy. Our failure to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision or right, nor will any waiver of any breach of these Terms act as a waiver of any other provision or a waiver of any future breaches. If any provision of these Terms is declared unenforceable or invalid by a court of competent jurisdiction, the provision will be enforced to the maximum extent permitted by law, and the other provisions of these Terms will remain unaffected and in full force and effect. If necessary, Zenergy will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent.

CONTACT US

Zenergy’s corporate offices are located at 245 Raven Road, Ketchum, Idaho, 83340. If you have questions regarding these Terms, or our Digital Properties or our clubs, please contact us by emailing info@zenergysv.com. Your feedback is always welcome and appreciated.

ADDITIONAL TERMS FOR APPS

The following terms (the “Additional Terms for Apps”) apply to any applications designed for download and use on mobile, tablet, smart watch or other personal devices which Zenergy may make available as part of the Digital Properties (the “Apps”). You acknowledge and agree that the availability of each App is dependent upon the third-party app store from which you download the App (the “App Store”). You acknowledge that these Terms are between you and Zenergy, and not with the applicable App Store. Each App Store may have its own terms and conditions to which you must agree before downloading an App from it, and the limited rights Zenergy grants you to use the App are conditioned upon your compliance with any and all terms and conditions of such App Store.

In addition, the following terms and conditions apply to any of our Apps that you download from any Apple App Store (an “iOS App”):

1. Acknowledgement: You and Zenergy each acknowledge that the Terms, including these Additional Terms for Apps, are between you and Zenergy, and not with Apple Inc. (“Apple”), and that, subject to any limitations set forth in these Terms, Zenergy, not Apple, is solely responsible for the iOS App and its contents. To the extent the Terms or an Additional Terms set forth herein provide for usage rules applicable to an iOS App that are less restrictive than or otherwise conflict with the Apple App Store Terms of Service, the more restrictive or conflicting provision in such Apple App Store Terms of Service will govern and apply.
2. Scope of License: The license granted to you under the Terms is limited to a non-transferable license to use the iOS App on any iPhone, iPad, Apple Watch or other iOS product or device that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Maintenance and Support: To the extent any maintenance and support services are required under applicable law or expressly contemplated by these Terms, Zenergy not Apple, is solely responsible for such services. You and Zenergy each acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.
4. Warranty: Zenergy, not Apple, is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed or limited under the Terms. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the iOS App to you. However, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, to the extent not effectively disclaimed or limited under the Terms, will be Zenergy’s sole responsibility.
5. Product Claims: You and Zenergy each acknowledge that Zenergy, not Apple, is responsible for addressing any claims you or a third party may have relating to the iOS App or your possession and/or use of that iOS App, including, but not limited to: (1) product liability claims; (2) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. However, you acknowledge and agree that Zenergy’s responsibility for the foregoing claims is limited and disclaimed, to the maximum extent permitted by applicable law, as further described in these Terms.
6. Intellectual Property Rights: You and Zenergy each acknowledge that, in the event of any third party claim that the iOS App, or your possession and use of the iOS App, infringes that third party’s intellectual property rights, Zenergy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, subject to any disclaimers and limitations set forth in, and your indemnification obligations under, the Terms.
7. Legal Compliance: You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Third Party Beneficiary: You and Zenergy each acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

ADDITIONAL TERMS FOR ZENERGY GIFT CARDS

The following terms and conditions (the “Additional Terms for Gift Cards”) apply to any Zenergy gift card originally purchased at the Zenergy location or through any Digital Property (each, a “Zenergy Gift Card”). Zenergy Gift Cards are issued by Zenergy (“Issuer”). By purchasing a Zenergy Gift Card, accepting and retaining a Zenergy Gift Card or using a Zenergy Gift Card, you agree to these Additional Terms for Gift Cards. Zenergy reserves the right to change, amend or terminate the Additional Terms for Gift Cards and/or its Gift Card offerings, in its sole discretion, at any time with or without notice or liability to you.

USE OF THE ZENERGY GIFT CARD

You may use the Zenergy Gift Card only to purchase eligible merchandise and pay for eligible services at Zenergy Health Club, Spa and Boutique.

REDEMPTIONS/BALANCES

Your use of the Zenergy Gift Card is limited to the current dollar value held on the card. You may obtain your balance by presenting your Zenergy Gift Card at the Zenergy Health Club. Zenergy Gift Cards may not be redeemed for cash, except to the extent required by applicable law.

RESTRICTIONS

You may not return, resell or use any Zenergy Gift Card for any unauthorized advertising, marketing, sweepstakes or other promotional purposes. EXPIRATION DATE/SERVICE CHARGES

A gift certificate or card without an expiration date prominently displayed on its face which remains unclaimed by the owner for more than five (5) years after becoming payable or distributable is presumed abandoned. In the case of a gift certificate or gift card without an expiration date prominently displayed on its face, the amount presumed abandoned is the price paid by the purchaser for the gift certificate.The Zenergy Gift Card does not incur service charges or dormancy fees.

PROMOTIONAL CARDS

These Additional Terms for Gift Cards do not apply to gift cards or other stored value cards that are given away for free or distributed as a reward, incentive, or as part of a marketing or promotional program (“Promotional Cards”). Promotional Cards may have different terms and expiration dates, to the extent permitted by applicable law. See below for terms and conditions applicable to Promotional Cards.

LOST OR STOLEN CARDS

Protect your Zenergy Gift Card as if it were cash and safeguard the Zenergy Gift Card from unauthorized use. Except where required by applicable law, neither Issuer nor Zenergy is responsible for and will not replace Zenergy Gift Cards if lost, stolen, damaged or destroyed.

MISUSE OF THE CARD

Issuer and Zenergy each reserve the right, in their sole discretion, to suspend or terminate use of any Zenergy Gift Card if Issuer or Zenergy suspects any fraud or misuse of a Zenergy Gift Card. Issuer or Zenergy may cancel the Zenergy Gift Card at any time, without notice or liability to you.

PROPERTY RIGHTS

The consideration paid for the Zenergy Gift Card, including any unredeemed balances, is the property of the Issuer.

NO WARRANTIES

TO MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENERGY AND ISSUER MAKE NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ZENERGY GIFT CARDS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ISSUER NOR ZENERGY ASSUME ANY RESPONSIBILITY FOR ANY LOSS OF ANY KIND ARISING OUT OF YOUR USE OF ANY ZENERGY GIFT CARD. IN THE EVENT A ZENERGY GIFT CARD IS NOT FUNCTIONAL, YOUR SOLE REMEDY AND ISSUER’S AND ZENERGY’S SOLE LIABILITY SHALL BE THE REPLACEMENT OF THE ZENERGY GIFT CARD AT ITS THEN-CURRENT VALUE.

SEVERABILITY

If any one or more of the provisions of these Additional Terms for Gift Cards shall be for any reason whatsoever held invalid by a court of competent jurisdiction, then such provisions shall be deemed severable from the remaining provisions and shall in no way affect the validity or enforceability of the other provisions of these Additional Terms for Gift Cards.

ENTIRE AGREEMENT

Except as specifically stated otherwise, these Additional Terms for Gift Cards, together with the Terms, set forth the entire understanding relating to the subject matter hereof, and supersede all prior understandings, written or oral.

CONTACT

For any questions or concerns regarding the Zenergy Gift Card program, please contact us as described in the “Contact Us” section above.

ADDITIONAL TERMS FOR PROMOTIONAL CARDS

The following terms and conditions (the “Additional Terms for Promotional Cards ”) apply to Zenergy gift cards or other stored value cards that are given away for free or distributed as a reward, incentive, or as part of a marketing or promotional program (“Promotional Cards”).  By using, accepting and/or retaining a Promotional Card, you agree to these Additional Terms for Promotional Cards. Zenergy reserves the right to change, amend or terminate the Additional Terms for Promotional Cards and/or its Promotional Card offerings, in its sole discretion, at any time without notice or liability to you.

USE OF THE PROMOTIONAL CARD

You may use the Promotional Card only to purchase eligible merchandise and pay for eligible services at Zenergy Health Club, Spa and Boutique.  You may not use the Promotional Card to pay for membership dues.

REDEMPTIONS/BALANCES

Your use of the Promotional Card is limited to the current dollar value held on the card. You may obtain your balance by presenting your Promotional Card at Zenergy Health Club. Promotional Cards may not be redeemed for cash.

RESTRICTIONS

You may not return, resell or use any Promotional Card for any unauthorized advertising, marketing, sweepstakes or other promotional purposes.

EXPIRATION DATE

All Promotional Cards will expire 30 days after the issuance date, unless a different expiration date is expressly set forth on the Promotional Card itself.

LOST OR STOLEN CARDS

Protect your Promotional Card as if it were cash and safeguard the Promotional Card from unauthorized use. Except where required by applicable law, neither Issuer nor Zenergy is responsible for and will not replace Promotional Cards if lost, stolen, damaged or destroyed.

MISUSE OF THE CARD

Issuer and Zenergy each reserve the right, in their sole discretion, to suspend or terminate use of any Promotional Card if Issuer or Zenergy suspects any fraud or misuse of a Promotional Card. Issuer or Zenergy may cancel the Promotional Card at any time, without notice or liability to you.

NO WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENERGY AND ISSUER MAKE NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROMOTIONAL CARDS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ISSUER NOR ZENERGY ASSUMES ANY RESPONSIBILITY FOR ANY LOSS OF ANY KIND ARISING OUT OF YOUR USE OF ANY PROMOTIONAL CARD. IN THE EVENT A PROMOTIONAL CARD IS NOT FUNCTIONAL, YOUR SOLE REMEDY AND ISSUER’S AND ZENERGY’S SOLE LIABILITY SHALL BE THE REPLACEMENT OF THE PROMOTIONAL CARD AT ITS THEN-CURRENT VALUE.

SEVERABILITY

If any one or more of the provisions of these Additional Terms for Promotional Cards shall be for any reason whatsoever held invalid by a court of competent jurisdiction, then such provisions shall be deemed severable from the remaining provisions and shall in no way affect the validity or enforceability of the other provisions of these Additional Terms for Promotional Cards.

ENTIRE AGREEMENT

Except as specifically stated otherwise, these Additional Terms for Promotional Cards, Terms, set forth the entire understanding relating to the subject matter hereof, and supersede all prior understandings, written or oral.

CONTACT

For any questions or concerns regarding any Promotional Card, please contact us as described in the “Contact Us” section above.

ADDITIONAL TERMS FOR SERVICES

The following terms and conditions (the “Additional Terms forServices”) apply to all personal training, nutrition, Pilates, yoga, tennis, and spa sessions originally purchased at the Zenergy Health club location or through any Digital Property (each, a “Session”). By using, accepting and/or retaining a Session, you agree to these Additional Terms forServices. Zenergy reserves the right to change, amend or terminate the Additional Terms for Services and/or the service offerings, in its sole discretion, at any time with or without notice or liability to you.

24 HOUR CANCELLATION POLICY

A Zenergy member or guest that has made an appointment for a Session may cancel or change the time of the Session provided that a minimum of 24-hours’ prior notice is given. You can make these changes in your account to the Digital Properties, or by contacting your service provider directly. Members will be charged for the full cost of the session on any late cancellations or no-show appointments.

PAYMENTS

Payment for Sessions is required to be made by the member on or before the date of the Session. If a member or guest has no Session inventory, charges for late cancellations or no show appointments for Sessions will be charged to the member or guest’s credit card. In addition, charges for Sessions which are used by a member but not otherwise paid for will be charged to the member’s credit card on the 1^st day of the month.

DISCOUNTS

Zenergy may offer discounts on Sessions to members who purchase a package of Sessions. These discounts only apply to the number of Sessions purchased as a group. Any further or additional Sessions will be charged at the regular rate then in effect for individual Sessions.

REDEMPTION

You may obtain information on your balance of Sessions in your account to the Digital Properties or at Zenergy Health Club. Sessions may not be redeemed for cash.

EXPIRATION POLICY

All sales are final. Session purchases expire two-years from the date of purchase.