POMELO SOLUTIONS, LLC
(FitMeNow.com)
Terms and Conditions
Updated: September 14, 2017

Pomelo Solutions, LLC (“Pomelo”) provides mobile business software (the “Platforms”) for appointment based business professionals (the “Service Providers”) for various service oriented industries, including FitMeNow.com. These Terms and Conditions will apply to all Pomelo Platforms. The use of Pomelo’s Website and mobile application (the “Application”) and/or the Services, constitutes a contract with Pomelo, with respect to use of any Website, Application and/or Services. By using a Pomelo Website, Application and Services, a Service Provider agrees to comply with and be legally bound by these Terms and Conditions (the “Terms”), as well as Pomelo’s separate Privacy Policy; whether or not a Service Provider becomes a registered user of the Services.

Pomelo provides Service Providers with software tools for managing information about their business, their clients, scheduling and tracking client reservations, client communications, and billing and payment processing through Stripe (the “Services”). These Terms govern access to and use of each Platform Website, Application and Services; and any participation in any Pomelo Platform constitutes a binding legal agreement between the Service Provider and Pomelo. These Terms are specifically intended to be used in connection with the Services provided through each Platform’s Website and Application, unless otherwise expressly agreed upon in a written document.

1. MODIFICATION. Pomelo reserves the right, in its sole discretion, to modify the Platform Websites, Applications and/or Services and to modify these Terms, at any time and without prior notice. If Pomelo modifies these Terms, Pomelo will post such modification on the applicable Platform Website and Application. Pomelo will also update the “Last Updated Date” at the top of the then current Terms. Continuing access to or use of the Website, the Application or the Services after Pomelo has posted a notice of modification, on the Website or via the Application, shall constitute an agreement to be bound by the modified Terms.

2. ACCOUNT REGISTRATION. In order to access certain features of each Platform Website and Application, and to book a reservation, Service Providers must register to create an account directly, via such Website and/ or Application.

Pomelo will create a Service Provider’s account and account profile page for use of the Website or the Application based upon the personal information provided to Pomelo. Each Service Provider shall provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Service Providers are responsible for safeguarding passwords and are solely responsible for any activities or actions under such account.

3. DISCLOSURES AND WARRANTIES / RESPONSIBILITY FOR CONTENT. All information (including alerts, profiles and schedules) is based upon information provided to Pomelo. Service Providers shall be solely responsible for all content made available through the Website, the Application and the Services by the Service Provider, including Client information. Pomelo shall not be responsible for undertaking any independent investigation. Service Providers are required to provide accurate information, and although Pomelo may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, Pomelo does not make any representations about, confirm, or endorse any Service Provider or any Service Provider’s purported identity or background. By using Pomelo’s Websites, Applications or Services, Service Providers agree that any legal remedy or liability available to Service Provider, for actions or omissions of other users or other third parties, will be limited to a claim against the particular users or other third parties who caused such harm. Service Providers agree not to attempt to impose liability on or seek any legal remedy from Pomelo with respect to such actions or omissions.

Pomelo reserves the right to remove or ban any Service Provider from Pomelo’s Websites and Applications, for any reason.

4. DEFINITIONS.

4.1. “Consumers” or “Clients” are those individuals who, through the use of Pomelo’s Platforms, transact business with a Service Provider.

4.2. Pomelo and Service Provider may be referred to as a "Party" or collectively as the "Parties" as appropriate.

4.3. Any program, class or appointment provided by a Service Provider, through a Pomelo Platform Website or Application, may be referred to as a “Reservation”.

5. PAYMENT PROCESSING.

5.1. Service Providers have the option of accepting payments by cash, check, or credit card from Consumers.

5.2. Pomelo will create a Stripe account on behalf of the Service Provider, which the Service Provider must activate. Once established, the Service Provider shall be solely responsible for the account. All Service Providers are responsible for reviewing Stripe’s Terms of Service, which are separate and distinct from these Terms and Conditions. All Service Providers are responsible for being familiar with and abiding by such Terms of Service, which control Service Provider’s use of the Stripe Services. Service Provider shall be responsible for all charges and fees incurred by Service Provider (or their Clients).

5.3. Credit card payments from Consumers are deposited to the Service Provider’s Stripe account, after payment of a credit card processing fee. The Service Providers are solely responsible for configuring Payout options for their Stripe account.

5.4. Charges to consumers are managed by the Service Provider, and are the Service Provider’s responsibility, and Service Provider is liable for resolving disputes related to Consumer charges.

5.5. Stripe’s contact information and Terms of Service are published and maintained by Stripe and made available on their website (https://stripe.com).

6. SUBSCRIPTION FEES / POMELO

6.1. Pomelo uses Stripe for credit card payment processing of costs and fees payable to Pomelo.

6.2. Payments for Pomelo’s services are separate from any fees or charges by Stripe, for transactions between a Service Provider and any Consumer.

6.3. Pomelo does not retain credit card information, other than the last 4 digits.

6.4. By enrolling in Pomelo’s monthly membership program, Service Provider agrees to pay and authorize Pomelo to automatically charge their credit card each month for the agreed monthly membership fee until the Service Provider pauses or cancels the subscription. Membership charges are non-refundable, and Service Provider is responsible for changing or updating their credit card information in the Application. Declined charges may result in suspension of the Service Provider’s account until membership fees are brought up to date. Accounts that are suspended for six months may be cancelled, resulting in deletion of all information associated with the account.

6.5. Service Provider may cancel their subscription at any time. Any cancellation request may require at least 48 hours before becoming effective following our receipt of the request, and it will take effect at the end of the current subscription period from the time of processing the request. Service Provider is not entitled, and hereby waives any right, to any credit, refund, price adjustment or any other discount, compensation or recompense for any partial-use or early cancellation of the subscription.

6.6. Pomelo reserves the right to change the Subscription Fees upon thirty (30) days’ advance notice. Continued use of the Application after notice of a change to the Subscription Fee will constitute Service Provider’s agreement to such changes.

6.7. Services Providers retain all rights to the information they provide about the Service Provider and their Customers, but Pomelo retains all rights and ownership of all Platforms, Software, Services and Applications, including our right to suspend access to their information if subscription payments are delinquent, and delete the data if: (a) they terminate their subscription; or (b) their account is suspended for six (6) months.

7. INSURANCE / WARRANTIES.

7.1. Service Providers shall be responsible, at their cost, for acquiring and maintaining appropriate insurance coverages.

7.2. Pomelo makes no warranty regarding: (i) the content or quality of a Service Provider’s products or services; (ii) the accuracy of a Service Provider’s profile; (iii) the qualifications of a Service Provider to be providing services; or (iv) the suitability of a particular Service Provider for a particular Consumer.

7.3. Service Provider is solely responsible for all content made available by Service Provider through the Website or the Application.

8. INDEMNIFICATION. Service Providers shall release, defend, indemnify, and hold Pomelo and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (a) the Services provided by a Service Provider; (b) violation of these Terms; (c) interaction with any Consumer; (d) booking of a reservation; or (e) creation of a profile.

9. LIMITATION OF LIABILITY. SERVICE PROVIDERS ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF ACCESS TO AND USE OF THE WEBSITE, APPLICATION AND SERVICES, LISTING OR BOOKING OF ANY RESERVATIONS VIA THE WEBSITE, APPLICATION AND SERVICES, AND ANY CONTACT SERVICE PROVIDERS HAVE WITH CONSUMERS WHETHER IN PERSON OR ONLINE REMAINS WITH PROFESSIONAL. NEITHER POMELO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WEBSITE, APPLICATION OR SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE WEBSITE, APPLICATION OR SERVICES, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS BY SERVICE PROVIDERS WITH CONSUMERS AS A RESULT OF THE USE OF THE WEBSITE AND APPLICATIONS.

10. SERVICE PROVIDER CONDUCT. Service Providers shall be solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to a Service Provider's use of the Platform Website, the Application and the Services.

In connection with the use of the Website, the Application, and the Services, Service Providers shall not:

  • Violate any local, state, provincial, national, or other law or regulation, or any order of a court;
  • Use the Website, the Application, or the Services for any commercial or other purposes that are not expressly permitted by these Terms;
  • Copy, store or otherwise access any information contained on the Website, the Application, the Services or collective content for purposes not expressly permitted by these Terms;
  • Use Pomelo’s Website, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
  • Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;

Pomelo has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.

11. REPORTING MISCONDUCT. If a Service Provider becomes aware of any inappropriate behavior, by any party, including Consumers or other Service Providers, which behavior includes, but is not limited to: (i) offensive, violent or sexually inappropriate behavior; (ii) theft; or (iii) disturbing conduct, Service Provider should immediately report it to the appropriate authorities.

12. PRIVACY. See Pomelo’s Privacy Policy at www.pomelosloutions.com/legal/privacypolicy for information and notices concerning Pomelo’s collection, and use, of a Service Provider’s personal information.

13. LINKS. Pomelo’s Websites, Applications and Services may contain links to third-party websites or resources. Pomelo shall not be responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Pomelo of such websites or resources or the content, products, or services available from such websites or resources. Service Providers shall be solely responsible for and shall assume all risks arising from use of any such websites or resources or the content, products or services on or available from such websites or resources.

14. ARBITRATION. In the event of any dispute arising out of or relating to any agreements or to these Terms, the Parties' exclusive remedy shall be binding arbitration. All such arbitration proceedings pursuant to this section shall be held in Los Angeles County, California, before the commercial division of the American Arbitration Association ("AAA"), in accordance with such entity’s expedited procedures then in effect. The decision of the arbitrator shall be final and binding. In making the decision the arbitrator need not follow any particular rules of evidence or procedure, but shall in good faith follow as nearly as practicable the rules of AAA relating to the arbitration of commercial disputes. Except as provided herein, any cost of arbitration shall be borne equally by each Party, with the prevailing Party being entitled to recover such costs, including reasonable attorneys’ fees. The arbitrator's decision shall be specifically enforceable in any court of competent jurisdiction. Notwithstanding any contrary provision in this section, the Parties may apply to any court of competent jurisdiction for interim or provisional relief pending the arbitrator's decision.

15. GOVERNING LAW AND INTERPRETATION. Any agreements and/or activities arising from or related to the Services provided by Pomelo to Service Providers shall be construed in accordance with the laws (excluding the laws relating to conflicts) of the State of California. Venue and jurisdiction in any action shall lie solely in Los Angeles County, California. In the event of the arbitration, the prevailing Party may be entitled to recover reasonable attorney fees and costs.

16. ENTIRE AGREEMENT. These Terms constitute the entire and exclusive understanding and agreement between Pomelo and you regarding any Pomelo Website, Application, and/or Services. These Terms supersede and replace any and all prior oral or written understandings or agreements between Pomelo and any Service Provider regarding Pomelo’s Websites, Applications and/or Services.