Terms and Conditions

TERMS AGREEMENT, CONSENT, DISCLAIMERS AND WAIVER FOR PERSONAL FITNESS INSTRUCTION AND NUTRITION INFORMATION AND EDUCATION SERVICES
This (this Agreement) is made and entered into by and between Primor Fitness, LLC, a Kansas limited liability company, with an office located in Sedgwick County, KS (Provider) and the undersigned (Client).
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS APP. By using this Primor Fitness application (the App) on any computer, mobile phone, tablet, console or other device (collectively, Device), you signify that you have read, understand and agree to be bound by these Terms of Use and any other applicable law. PRIMOR FITNESS, LLC (PRIMOR FITNESS) may change these Terms of Use at any time without notice, effective upon its posting to the App. Your continued use of the App shall be considered your acceptance to the revised Terms of Use. If you do not agree to these Terms of Use, please do not use this App.
WITNESSETH:
WHEREAS, Provider provides personal fitness instruction and nutrition education to both individual and corporate clients (the Services); and
WHEREAS, Client desires to retain Provider, and Provider desires to perform for Client, the Services, all upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, Provider and Client (each a Party and collectively the Parties) agree as follows:
Performance of Services.
Client shall enroll in one of the programs provided by PRIMOR FITNESS and Provider shall provide the Client the Services as described in membership plan.
Payment and Refund Terms.
The amounts payable by Client to Provider under this Agreement shall be paid as follows:
(a) The first membership fee for Services. shall be due and payable to Provider upon the date of execution of this Agreement and membership fee thereafter will recur at interval as determined by membership type selected throughout the term of this Agreement. If a trial membership was agreed to or a gift certificate is redeemed, the app download fee will be charged upon sign-up. Following the trial, special or gift certificate period offered; standard membership fees recur at intervals as determined by membership type and at the standard fee as posted on primorfitness.com.
(b) Provider may, in its sole discretion, immediately terminate this Agreement or temporarily suspend all services under this Agreement in the event any amount due and payable hereunder remains unpaid.
(c) Client agrees to pay interest on any amount that is not timely paid under this Agreement at the rate of eighteen percent (18%) per annum or, if less, the maximum rate of interest allowed by applicable law.
(d) Client agrees to pay any and all costs and expenses (including, without limitation, reasonable attorney fees) incurred by Provider in collecting any amount due and owing by Client under this Agreement.
(e) Client shall not be entitled to refund of all or any portion of any amount paid by Client to Provider under this Agreement upon termination hereof. Client shall not have the right to set off against amounts due and owing to Provider under this Agreement.
(f) Client will pay or reimburse Provider for all sales, use, transfer, privilege, excise, and other taxes and duties, whether international, national, state or local, however designated, that are levied or imposed by reason of the products or services provided by Provider under this Agreement; excluding, however, income taxes on profits that may be levied against Provider.
(g) Client will provide 30 days written notice of desire to terminate agreement. Recurrent billing and membership will cease after the first billing cycle that occurs 30 days following written notice on all memberships.
(h) Clients on a trial or discounted membership will be charged standard fees for the membership type automatically at the completion of the trial or special membership fee.                                                                                                                                                                     (i) Client understands that no refunds will be given.
(i) All fees are subject to change without prior notice due to currency fluctuation and/or unforeseen economic circumstances.
 
Physical Activity Notice
The App may include features that promote physical activity. Consider the risks involved and consult with your medical professional before engaging in any physical activity. PRIMOR FITNESS is not responsible or liable for any injuries or damages you may sustain that result from your use of, or inability to use, the features of the App.
Pro workouts and Video-On-Demand and MindVibe workouts may be available, but not appropriate for all members. If you have any questions regarding these please consult with Primor Fitness or your physician prior to engaging in these options.
App Use Restrictions
You may use the Content only for your own non-commercial use to use the App. You agree not to change or delete any ownership notices from materials downloaded or printed from the App. You agree not to modify, copy, translate, broadcast, perform, display, distribute, frame, reproduce, republish, download, display, post, transmit or sell any Intellectual Property or Content appearing on the App, including Personal Information (defined below), without PRIMOR FITNESS’s prior written consent, unless it is your own Personal Information that you legally post on the App. You agree not to use any data mining, robots, scraping or similar data gathering methods. Nothing in these Terms of Use shall be interpreted as granting any license of intellectual property rights to you.
Personal Information
To use the App, you may be asked to provide certain personal information (the Personal Information), including information about your weight, age and gender, to optimize your use of the App. If you choose to provide such Personal Information, you agree to provide accurate and current information about yourself, and PRIMOR FITNESS will not be responsible for any injury related to any Personal Information you submit to the App or omit. The use or disclosure of any Personal Information you supply will be governed by our Privacy Policy.
Links
The App may contain links to websites, applications or other products or services operated by other companies (Third Party Platforms). PRIMOR FITNESS does not endorse, monitor or have any control over these Third Party Platforms, which have separate terms of use and privacy policies. PRIMOR FITNESS is not responsible for the content or policies of Third Party Platforms and you access such Third Party Platforms at your own risk. Please review carefully the policies and practices for these Third Party Platforms and make sure you understand such policies before you engage with these Third Party Platforms. Complaints, claims, concerns, or questions regarding the content or policies of Third Party Platforms should be directed to the third-party operating such platform.
User Interaction Disclaimer
You are solely responsible for your interactions with other people, whether online or in person. PRIMOR FITNESS is not responsible or liable for any loss or damage resulting from any interaction with other App users, persons you meet through the App, or persons who find you because of information posted on, by or through the App. You agree to take reasonable precautions in all interactions with other users on the App and conduct any necessary investigation before meeting another person. PRIMOR FITNESS is under no obligation to become involved with any user dispute but may do so at its own discretion.
 
Mobile Services
The App contains services and features that are available to certain mobile Devices. Your carriers normal rates and fees apply. Not all mobile services will work with all carriers or Devices. By using PRIMOR FITNESS’s mobile services, you agree that we may communicate with you by electronic means to your mobile Device (including SMS and email) and that certain information about your use of these services may be shared with us. If you change or deactivate your mobile phone number, you must promptly update your account information to ensure that we don’t send your messages to a different person.
Client Information.
Client assumes sole responsibility for the accuracy of all materials and other information furnished by Client to Provider under this Agreement. Client agrees to furnish to Provider such materials and other information as Provider may reasonably request from time to time. Client represents and warrants to Provider that all materials and other information furnished by Client to Provider under this Agreement will be accurate and complete.
Indemnification
You agree to indemnify, defend, and hold harmless PRIMOR FITNESS, its affiliates, officers, directors, employees, agents, licensors and suppliers from and against all claims, losses, liabilities, expenses, damages and costs, including, without limitation, attorneys fees, arising from or relating in any way to your Personal Information, your use of the App, your conduct in connection with the App or with other App users, or any violation of these Terms of Use, any law or the rights of any third party.
Limitation of Liability
PRIMOR FITNESS is not be liable for any direct, special, incidental, indirect or consequential damages, including for any lost profits or lost data, that result from the use of, or the inability to use, this app or the conduct of other app users (whether online or offline) or attendance at a PRIMOR FITNESS EVENT or any personal information, even if PRIMOR FITNESS has been advised of the possibility of such damages. You assume total responsibility for your use of the app. Your only remedy against PRIMOR FITNESS for use of the app or any content is to stop using the app. That said, PRIMOR FITNESS is found to be liable to you for any damage or loss which is in any way connected with your use of this app or any content, PRIMOR FITNESSs liability shall not exceed US $100.00. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Representations and Warranties of Client.
Client represents and warrants that the individuals participating in the program herein are able to perform the exercise routines and activities set forth in the program until such time that the individual or such individuals medical provider provides written notice to Provider that such individual is unable to perform or should not participate in the exercise routines or activities proposed by Provider.
Warranty Disclaimer
PRIMOR FITNESS is not responsible or liable for any Personal Information posted on the App or for any offensive, unlawful or objectionable content you may encounter on or through the App. The App is provided AS IS and without warranties of any kind. To the fullest extent permitted by law, PRIMOR FITNESS disclaims all warranties, express or implied, including, but not limited to, implied warranties of title, merchantability, fitness for a particular purpose and non-infringement PRIMOR FITNESS cannot guarantee and does not promise any specific results from use of the App. PRIMOR FITNESS does not represent or warrant that the App will be uninterrupted or error-free, that any defects will be corrected, or that this App or the server that makes the App available are free of viruses or anything else harmful. To the fullest extent permitted by law, PRIMOR FITNESS does not make any warranties or representations regarding the use of the materials or Content in the App in terms of their correctness, accuracy, adequacy, usefulness, reliability or otherwise. You understand and agree that you download or otherwise obtain Content at your own risk, and that you will be solely responsible for your use and any damage to your mobile Device, computer system or other Device in which you access the App, loss of data or other harm of any kind that may result PRIMOR FITNESS reserves the right to change any and all Content and other items used or contained in the App at any time without notice. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.
General Provisions.
Force Majeure. Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if by mail, three (3) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmission, upon electronic confirmation thereof,  (iv) if by next day delivery service, upon such delivery (v) any notice, agreement, disclosure or other communication that PRIMOR FITNESS sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. The provisions of this Agreement shall be construed as a whole and not strictly for or against either party. The section headings in this Agreement are included only for purposes of convenient reference, and they shall not affect the interpretation of this Agreement. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the Party against which such amendment, change, waiver, or discharge is sought to be enforced. Failure by any Party to enforce any provisions of this Agreement shall not constitute a waiver of any of the terms or conditions hereof.
Severability. This Agreement, to the extent possible, shall be construed so as to give validity to all the provisions hereof. Any provision of this Agreement found to be invalid or unenforceable by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision of this Agreement and each provision of this Agreement shall be enforced to the fullest extent permitted by applicable law.
Governing Law. This Agreement will be governed in all respects by the laws of the State of Kansas without regard to its conflict of law provisions, and the Parties agree that the sole venue and jurisdiction for disputes arising from this Agreement will be the appropriate state or federal court located in the City of Wichita, Kansas, and the Parties hereby submit to the jurisdiction of such courts.
Assignment. This Agreement is not assignable or transferable in whole or part by Client without the prior written consent of Provider, which consent will not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their successors and permitted assigns.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. A signed copy of this Agreement or an executed signature page of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement, including the acceptance of terms upon signup.
Advertising. Provider may use the likeness of, name of, and identify Client as a Client of Provider in advertising, publicity, or similar materials distributed or displayed to prospective clients.
Costs and Expenses. Subject to the limitations set forth, if a dispute should arise between the Parties, the prevailing Party in such dispute shall be entitled to reimbursement from the other Party of the reasonable costs and expenses (including reasonable attorney fees) incurred by the prevailing Party in connection with such dispute.
Relationship. Nothing in this Agreement shall constitute or be construed to be or to create a partnership or joint venture between the Parties. Provider is an independent contractor who has agreed to provide to Client the services set forth in this Agreement.
Survival. The provisions of Sections 4-7 of this Agreement and any other provision of this Agreement relating to the enforcement or interpretation thereof shall survive the termination of this Agreement.
Electronic Transactions. The services provided under this Agreement may be conducted and other related records may be created, transmitted, stored, processed, or maintained by electronic means, including, without limitation, third-party platforms, cloud-based storage systems, and artificial intelligence-assisted platforms or tools. Client consents to such electronic transmission, storage, and use.
Termination
PRIMOR FITNESS reserves the right in its sole discretion to terminate your account, delete your profile and any of your Personal Information, and restrict your use of all or any part of the App for any or no reason, without notice, and without liability to you or anyone else. PRIMOR FITNESS also reserves the right to block users from certain IP addresses or Device numbers and prevent access to the App. These Terms of Use remain in effect even after your account is terminated. The Terms of Use relating to Intellectual Property, Indemnification, User Interaction Disclaimer, Warranty Disclaimer, Limitation of Liability, Miscellaneous, Severability and terms that by their nature may survive termination shall survive any termination.
Miscellaneous
You agree that this app is an online platform operated by Primor Fitness in Kansas, and that use of the app outside Kansas does not give rise to personal jurisdiction over Primor Fitness outside of Kansas. You agree that this App, Terms of Use, Privacy Policy and any dispute between you and PRIMOR FITNESS shall be governed in all respects by Kansas law, without regard to choice of law provisions, and not by the 1980 U.N. Convention on contracts for the international sale of goods. Except where prohibited, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to this App (including but not limited to the purchase of PRIMOR FITNESS products) shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in Wichita, Kansas. You consent to waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Wichita, Kansas. Subject to the limitations herein, if a dispute should arise between you and PRIMOR FITNESS, the prevailing party in such dispute shall be entitled to reimbursement from the other party of the reasonable costs and expenses (including reasonable attorney fees) incurred by the prevailing party in connection with such dispute. Any cause of action or claim you may have must be commenced within one (1) year after the claim or cause of action arises. By using the App, you agree to receive certain electronic communications from PRIMOR FITNESS. You agree that any notice, agreement, disclosure or other communication that PRIMOR FITNESS sends you electronically will satisfy any legal communication requirements, including that such communications be in writing. PRIMOR FITNESS’s failure to insist upon or enforce strict performance of any of these Terms of Use shall not be considered a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall modify any of these Terms of Use. PRIMOR FITNESS may assign its rights and duties under these Terms of Use to any party at any time without notice to you.
Consent & Disclaimers
I. CONSENT AND DISCLAIMERS:
1. I hereby consent to Primor Fitness, LLC (Primor Fitness) providing personal fitness instruction and nutrition education to myself or to a client for which I am legally responsible (the Services).
2. I understand and acknowledge that the Services are strictly limited to fitness consultation, education and training and are provided to enhance my knowledge of personal health. At no point shall the Services consist of those of a dietetics practice as defined in K.S.A. 65-5902(d). Further, I understand and acknowledge that the Services as provided and directed by Primor Fitness are not medical advice or prescribed treatment by a licensed medical provider and that the Services are not a substitute for diagnosis, medical treatment, or advice by a licensed medical provider.
3. If I am currently taking any prescription medications at the direction of a licensed medical provider, I am aware that I should discuss any changes to my diet with such medical provider prior to instituting any changes to my diet.
4. I hereby represent that I am able to perform the exercise programs proposed and/or provided by Primor Fitness, until such time that I, or my medical provider, informs Primor Fitness that I am unable to perform or should not participate in the exercise programs or activities proposed and/or provided by Primor Fitness. I understand and agree that the Pro, Video-On-Demand and MindVibe exercise programs provided through Primor Fitness app have not been specifically prescribed to me by Primor Fitness and may not be appropriate for every client. I expressly assume any and all risk associated with my participation with said Pro, Video-On-Demand and MindVibe exercise programs.
5. I acknowledge that customized workout plans developed and assigned by Primor Fitness following an individual consult are intended solely for the individual who completed the consult and are not appropriate for use by any other person, even if they are a member of a shared or family membership plan.
II. PERSONAL RESPONSIBILITY:
1. I expressly assume any and all risk associated with my participation in the Services as provided and directed by Primor Fitness.
2. I release Primor Fitness and its owners, employees, and agents from any and all liability, damages, causes of action, allegations, claims, and demands, in law or equity, which I have had, now have, or will have in the future against Primor Fitness arising from, relating to, or resulting from the Services, unless arising from the gross negligence of Primor Fitness or its owners, employees, or agents.
3. I agree that if I have any questions regarding my physical ability to perform an exercise program either specifically prescribed by Primor Fitness or available on Primor Fitness app, I will consult with my medical provider before attempting such exercise program.
III. CONFIDENTIALITY:
1. I understand and acknowledge that only information related to Primor Fitness provision and direction of the Services will be collected and retained by Primor Fitness.
2. I understand and acknowledge that Primor Fitness will keep my information private and will not share my information with any third party, absent my consent or direction, or required by law.
I have read these terms, conditions, consent/waiver and the terms contained herein carefully. I understand and agree to the terms and voluntarily agree to be bound by them.
III. Authorization and Liability Waiver for Minor Access
By enrolling a minor in a Benalign Personal Care membership package or any other membership that includes access to the Primor Fitness app and services, I, as the parent or legal guardian grant express consent for the minor to use the app and services and assumes full responsibility for their participation. Parent or guardian shall hold harmless Primor Fitness and its officers, members, employees, agents, and partners from any claims or liabilities arising from the minor’s use of the app or services. Parent or guardian hereby expressly and specifically assumes the risk of injury or harm in these activities and releases Prior Fitness, their agents and representatives from all liability for injury, illness, death or property damage resulting from minor’s use of the app and services. Parent or guardian expressly agrees that this release is intended to be as broad and inclusive as permitted by the laws of the State of Kansas. VG04262026.