END USER LICENSE AGREEMENT SLAY BY MARI FITNESS
Slay by Mari Fitness is a fitness instructional software in the format of a React Native program for use on handheld mobile devices (the “Application”) owned and operated by Slay by Mari Fitness, LLC (the “Company”), a limited liability company. The Company also maintains and operates https://slayystore.myshopify.com (the “Website”).
PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”)
CAREFULLY BEFORE USING THE APPLICATION. BY ACCESSING AND/OR USING
THE APPLICATION (OTHER THAN TO READ THIS AGREEMENT FOR THE FIRST TIME), YOU ARE AGREEING TO COMPLY WITH THIS AGREEMENT, WHICH MAY CHANGE FROM TIME TO TIME WITHOUT NOTICE TO YOU, AS SET FORTH HEREIN BELOW.
THIS AGREEMENT IS A BINDING AGREEMENT BETWEEN THE COMPANY AND YOU
(“YOU” OR “USER”). YOUR CONTINUED USE OF THIS APPLICATION FOLLOWING
BY USING THE APPLICATION, YOU ARE SPECIFICALLY AND EXPRESSLY AGREEING TO THE FITNESS WAIVER AND ASSUMPTION OF THE RISK REFLECTED HEREIN IN PARAGRAPH 11.3.
YOU ARE HEREBY, AFTER USAGE OF SAID APPLICATION, ENTERING INTO AND AGREEING TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE OR WISH TO BE BOUND BY THIS AGREEMENT,
DISCONTINUE YOUR USAGE OF THE APPLICATION AND REMOVE IT FROM YOUR MOBILE DEVICE.
GENERAL AND DEFINITIONS.
“Platform”) and such other third-party content providers, affiliates, licensors and/or vendors (“Vendors”). Any such Applicable Usage Rules are hereby incorporated herein, and to the extent possible, are superseded hereby.
The term “Application,” in addition to the definition set forth above, shall include to mean, and refer to the following:
the mobile software Application accompanying this Agreement, including, without limitation, any software code, algorithms, scripts, interfaces, graphics, displays, text,
content, documentation, APIs, and other components;
any updates, modifications or enhancements to the items listed in subsection (i) regardless of whether the same are accessible by You or not; and
any specific website the Application directs you to via any browser located on your Mobile Device, if the same is maintained by the Company, or its affiliates.
“Mobile Device” shall mean any handheld computing device capable of operating the Application, meaning and intending to include the iPhone XS Max , iPhone XS, iPhone 8, iPhone 8 Plus, iPhone 7, iPhone 7 Plus, iPhone 6, iPhone 6 Plus, iPhone 5SE , iPod Touch (7th Generation), Motorola Moto G6, Motorola Moto Z, Motorola DROID Turbo 2, Samsung Galaxy S8, Samsung Galaxy S9, Samsung
Galaxy S10, Samsung Note 8, Google Pixel 2, Google Pixel 2 XL, Google Pixel 3, Google Pixel 3 XL, Google Pixel 3A and/or Google Pixel 3A XL, and such other similar products that run the operating system Android by Google and/or iOS by Apple.
“User” shall mean, in addition to the definition above, and not in derogation thereof, any individual who downloads, installs, and uses the Application in any manner on any Mobile Device, whatsoever, including, but not limited to, You, and other individuals as context may require.
1.1 PURPOSE & LICENSE GRANT
NO MEDICAL ADVICE. THE INFORMATION CONTAINED IN OR MADE AVAILABLE
THROUGH THE APPLICATION CANNOT REPLACE OR BE A SUBSTITUTE FOR THE
SERVICES OF TRAINED PROFESSIONALS IN ANY FIELD, INCLUDING, BUT NOT
LIMITED TO, FINANCIAL, MEDICAL, OR LEGAL MATTERS. IN PARTICULAR, YOU
SHOULD REGULARLY CONSULT A TRAINED PROFESSIONAL IN ALL MATTERS
RELATING TO MEDICAL ISSUES, PARTICULARLY CONCERNING ANY SYMPTOMS
THAT MAY REQUIRE DIAGNOSIS OR MEDICAL ATTENTION. FOR PRODUCTS, YOU SHOULD ALWAYS CONSULT WITH THE OFFICIAL PRODUCT DOCUMENTATION THAT COMES WITH THE PURCHASE OF ANY PRODUCT.
YOU ARE SOLELY RESPONSIBLE FOR THE CONTENT, INFORMATION AND OTHER
MATERIALS THAT YOU POST ON THE APPLICATION OR TRANSMIT TO OTHER
WITHIN YOUR ORGANIZATION, ALONG WITH SCENARIOS YOU USE (AS DEFINED
HEREIN BELOW) AND AGREE THAT YOU WILL NOT HOLD THE COMPANY RESPONSIBLE OR LIABLE FOR ANY CONTENT AND/OR INFORMATION THAT YOU ACCESS ON OR WHILE UTILIZING THE APPLICATION.
The Company grants You a revocable, non-exclusive, non-transferable, personal, royalty-free, limited license to install and use the Application and its features in the United States only—including but not limited to “Account,” “Plans,” “Subscription,” “Tutorial,” “Gym Guides,” “Progress,” “Glossary,” “Settings,” and/or “Shop” (as amended) (collectively, the “Features”)—across all of your compatible Mobile Devices, but for active use on a single Mobile Device controlled by You at one time, and to access and use the Application on such Mobile Device strictly in accordance with this Agreement, the Usage Rules, and any service agreement associated with your Mobile Device (“Related Agreements”), solely for your own purposes. All rights not expressly granted to You are reserved by the Company, its affiliates, and licensors. Your right and license shall allow You to use the Application on any Mobile Device that You own or control, and as permitted by a Platform’s Usage Rules set forth in applicable Terms of Service.
The Application provided and some or all servers that make them available may reside in the United
States. The laws of other countries may differ regarding the access and use of some services. The Company makes no representations regarding the legality of the Application in any other country and it is your responsibility to ensure that your use complies with all applicable laws.
You may not access the Application if you are a direct competitor of the Company, except with the Company’s prior written consent. In addition, you may not access the Application for the purposes of monitoring its availability, performance, functionality, or for any other benchmarking or competitive purpose.
You agree that at all times while using the Application that you will comply with all Applicable Federal, State, international, and local laws including, without limitation, copyright law. Except as expressly permitted in this Agreement, You may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit the Application for any purpose, whatsoever, without obtaining prior written consent from the Company, any thirdparty, including a Platform and other Vendors, or other Users in the case of User-Generated Content, as set forth hereinafter, who is the respective owner of such content. You hereby expressly acknowledge that you do not acquire any ownership rights or interests of any nature by way of any usage of the Application, and that the Company may revoke this license without any notice to You whatsoever, and thereby your rights to continued usage of the Application.
1.2 RESTRICTIONS ON USE.
The Application is for the personal use of Users only, unless otherwise set forth herein. Illegal and/or unauthorized uses of the Application may be investigated, and appropriate legal action will be taken, including without limitation, civil actions, criminal prosecution, and injunctive remedies. Use of the Application may be revoked at any time, as determined in the Company’s sole discretion.
Any unauthorized use of the Application or publication of its contents, or other distribution or public exhibition of the materials provided on the Application, in whole or in part, is strictly prohibited as set forth herein.
You shall use the Application in strict accordance with this Agreement, and the Terms of the Related Agreements, and shall not do any of the following, in whole or in part, or in any way engage in any behavior or actions similar in intent to those which follow:
i. Remove, alter, obscure, cover, or distort any proprietary notice, including notices of copyright, trademark, or the like, on the Application whether said notice is of the Company, its affiliates, a Platform, Vendors, other Users, or any other party; ii.
Attempt to or interfere with the proper working of the Application or impair, purposely overburden, or disable the same;
Decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the whole, or any portion, of the Application;
Hack the Application, attempt to introduce and/or elicit a DDOS (denial of service), introduce any malware, spam or any code or content with a malicious intent to the Application or the Slay by Mari Fitness digital ecosystem; viii. Use networkmonitoring software to determine architecture of or extract usage data from the
Application; ix. Encourage, or engage in, conduct that violates any local, state, Federal, or international law, either civil or criminal, or impersonate another user, person, or entity (e.g., accessing another member’s account without permission, etc.);
Violate U.S. export laws, including, without limitation, Export Administration Act, the Export Administration Regulations administered by the Department of Commerce and/or the International Traffic in Arms administered by the Department of State;
Engage in any conduct that restricts or inhibits any other User from using or enjoying the Application;
Use the Application to encourage, or engage in, conduct taking place offline or on other third-party Applications that violates any local, state, Federal, or international law, either civil or criminal;
Fail to remove, eliminate, resolve and/or take down any content allegedly infringing of a third-party’s rights of any kind;
Use the Application for any purpose for which it is not designed or intended; xv. Install, use, or permit the Application to be in active simultaneous use on more than one Mobile Device at a time, or on any other Mobile Device, unless otherwise permitted, or required to be permitted, by a Platform;
Make the Application available over a network or other environment permitting access or use by multiple Mobile Devices or Users at the same time, unless otherwise permitted, or required to be permitted, by a Platform;
Use the Application for creating a product, service, or software that is directly or indirectly competitive with, or in any way a substitute for any service, product, or software, in whole or in part, of the Company, whether or not such functionality is incorporated into the Application or not;
Use the Application to send automated queries to any website, or to send any unsolicited spam or email; and/or
Use any proprietary information or interfaces of the Company or a Platform, or other
intellectual property of the Company or a Platform in the design, development, manufacture, licensing, or distribution of any Application, website, accessories, devices, or the like for use with or in substitution of the Application.
You agree to cooperate fully with the Company to investigate any suspected or actual activity that is in breach of this Agreement.
This Agreement and rights hereby established by this Agreement shall be effective until terminated. The Company may terminate said license and/or right and/or this Agreement with, or without any notice to You whatsoever.
The Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement, the Application, Your usage and access of the Application, and any rights or license rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights granted to You or license hereby granted to You shall terminate automatically, without any notice or other action by Company. Upon the termination of this Agreement, You shall cease all use of the Application and uninstall the Application.
You hereby acknowledge that This Agreement is formed between You and the Company only, and not with a Platform. The Company, and not a Platform, is responsible, as set forth herein, for the Application. Any provisions of This Agreement that are less restrictive than a Platform’s Usage Rules set forth for so-called Licensed Applications in the iTunes App Store and/or Google Play Terms of Service shall be superseded by the more restrictive terms.
Through the Application, by acquiring a paid subscription via the terms of subscription as reflected on the Application You may be able to become a member of a certain class of user that may allow access to and/or use some features or functionality of the Application that may otherwise be restricted, including, but not limited to the Features. In order for Your access to said Features or functionality to be accessible, you must first register for a paid subscription, or “Account” as hereinafter defined.
IF YOU ARE UNDER THE AGE OF THIRTEEN (13), THEN YOU ARE NOT PERMITTED TO
REGISTER AS A USER, FOR AN ACCOUNT, OR OTHERWISE SUBMIT PERSONAL
INFORMATION TO THIS APPLICATION OR TO THE COMPANY. You hereby certify and hold the Company harmless that your participation in and access of this Application, or in any way your
usage of the Company’s services, that you are thirteen (13) years of age, or older, as aforesaid.
Furthermore, you represent and warrant that you have the right, authority and capacity to enter into this
Agreement, and that you are not a person barred from receiving services under the laws of the United States or other Applicable jurisdiction. You further agree to provide true, accurate, current and complete information about yourself on the Services registration form. If the Company suspects that any information provided is untrue, inaccurate, outdated or incomplete, the Company has the right to refuse any and all current or future use of the Application (or any purchase thereof), including purchase of any of our services.
3.1 USER ACCOUNT(S) / “ACCOUNTS.”
Through the Features, you may be able to become a member of a certain class of user that may be allowed access to and/or use some of the Features for purposes of viewing, managing and/or participating in educational simulations, such as Scenarios. Such a personalized registered account shall be referred to as a “Account.” If you are under the age of thirteen (13), then you are not permitted to register an Account or otherwise submit personal information to the Application.
To register an Account, you shall provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will either confirm or input identifying information, which may permit you access to certain areas of the Application not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Account. You are solely responsible for the activity that occurs under your Account, whether or not you have authorized the activity.
You agree to promptly provide us with detailed written notice thereof to
Help@slayapp.com of any breach of security or unauthorized use of your Account.
Permissions. Registered Users may through an Account interface with the Feature which may request the following Operating System permissions: Request Permission to
Access Address Book/Contacts; Request Permission to Open Camera; Request
Permission to Access Camera Library; Request Permission to Receive Push
Notifications. Users accept all responsibility and assume all risk associated with granting such permissions, or those permissions which may later be integrated into the Application.
Future and/or Deletion of Features. The Company reserves the right to implement novel Features or to disable and/or delete existing Features without notice to You.
INTELLECTUAL PROPERTY RIGHTS.
RIGHTS TO THE APPLICATION.
You acknowledge and agree that the Application, and all copyrights, patents, trademarks, trade secrets, and other intellectual property rights associated therewith are, and shall remain, the property of the Company, and that the content, and all functionality related incidentally an/or indirectly thereto, and any derivative works or enhancements of the same, including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features shall remain the property of the Company, its affiliates, a Platform, Vendors, or other Users in the case of User-Generated Content, as the case may be. Except for the limited use rights granted to You in this Agreement, you shall not acquire any right, title, or interest in the Application, including intellectual property rights,
and that no such rights, title, or interest shall be derived by you in or to the Application by implication, estoppel, or any other legal theory. Any rights not specifically set forth herein are expressly reserved by the Company.
The Application may utilize or include third-party software that is subject to open source and thirdparty license terms (“Third-Party Software”), including but not limited to functionalities of payment processing, GoogleAnalyticsAPI, KlaviyoForEmailAPI, CrashlyticsAPI, OneSignalAPI, FacebookAPI, Instagram Login API, AppleLoginAPI, GooglePaymentsAPI, Apple Payments API, and/or other functionalities, including other APIs. You acknowledge and agree that Your right to use such
ThirdParty Software as part of the Application is subject to, and governed by, the terms and conditions of the open source or third-party license Applicable to such Third-Party Software, including, without limitation, any Applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between This Agreement and the terms of such open source or third-party licenses, the terms of the open source or third-party licenses shall control with regard to Your use of the relevant Third-Party Software, but in no way shall be Applicable to the balance of the Application not so thereby governed. In no event, shall the Application or components thereof be deemed to be “open source” or “publicly available” software as those terms may be in common usage in similar scenarios.
THIRD-PARTY PAYMENT PROCESSING.
The processing of payments made on the Application may be handled by a third-party payment processor. Said third-party payment processor may have its own terms of service or other agreements with which you must agree before making payment online and/or may be agreeing to tacitly by making and/or receiving payment online. By accepting this Agreement, you specifically agree that the processing of payments is handled by a third-party other than the Company and is subject to the Indemnifications and Limitation of Liability reflected below.
You are not authorized to use the Company trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of Company, which may be withheld for any or no reason.
You and Company acknowledge and agree that, in the event of a third-party claim that the Application or Your possession or use of the Application infringes any third-party’s intellectual property and/or any other rights, You (and not Company nor a Platform) will be responsible for the investigation, defense, settlement, and/or discharge of any such claim of intellectual property infringement. A Platform shall expressly be waived hereby of any and all such liability. You will, however, promptly notify the Company in writing of such a claim.
SERVICES AND ACCOUNT.
The Company agrees to provide you with services for the specific edition of the Application provided, developed, operated, and/or maintained by the Company, and accessible via Your Mobile Device or another designated platform, or ancillary online or offline products and services provided to You by Company as related specifically to Your use of the Application, to which you are being granted access under this Agreement. You may be required to establish an account, for which access may or may not be granted via ancillary online or offline products and services as specifically related to the Application. Any access to said account or other services provided on any device other than the Mobile Device for which the Application is intended, including, but not limited to the Website, shall not in any way be guaranteed. No rights shall be given to You in furtherance of this Agreement to such ancillary products or services, and the terms of this Agreement shall be the full extent of the Agreement between You and the Company. Such ancillary products and services are solely for Your convenience, and You do not gain any additional rights, or remedies thereby. The Company may, in its sole discretion, and without notice whatsoever, discontinue, alter, or change in whole or in part said ancillary services or products.
RESTRICTION ON TRANSFER.
You may not rent, lease, lend, sublicense or transfer the Application, Account, this Agreement, or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect, and the Company expressly reserves all rights that it may have hereunder or otherwise.
USE OF INFORMATION.
CONSENT TO USE INFORMATION.
You hereby authorize and consent to the collection, storage and use, by the Company and its affiliates, partners and agents, including a Platform and the Company’s Vendors, of any information and data related to or derived from Your use of the Application, and any information or data that You provide to
Company and its affiliates, partners and licensors, including a Platform and the Company’s Vendors (“Information”). Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information and data, in an aggregate (not user level) form: search requests, search results, patterns, data and suggestions based on user actions. Notwithstanding the foregoing, You shall not provide or disclose, and the Information shall not include any information or data, that is personally identifiably to You. The Information will be treated as being nonconfidential and nonproprietary, and the Company assumes no obligation to protect confidential or proprietary information (other than personally identifiable information) from disclosure and will be free to reproduce, use, and distribute the Information to others without restriction. The Company will also be free to use any ideas, concepts, know-how or techniques contained in the Information for any purpose whatsoever including, without limitation, developing, manufacturing and marketing products and services incorporating such Information. The Company may use your personal information to contact you directly with prospective transactions if the Company believes it may be in possession of information about prospective deals that may be of interest to you.
You shall not submit any User-Generated Content that is not Yours and is protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual,
proprietary or other Third-Party right without the express permission of the owner of the respective
right. YOU, AND NOT THE COMPANY OR ANY PLATFORM, ARE SOLELY LIABLE FOR
ANY DAMAGE RESULTING FROM YOUR FAILURE, WHETHER INTENTIONAL OR NOT, TO OBTAIN SUCH PERMISSION OR FROM ANY OTHER HARM RESULTING FROM USERGENERATED CONTENT THAT YOU SUBMIT.
You represent, warrant, and covenant that you will not submit any User-Generated Content that:
i. Violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right of any person or entity; ii. Impersonates another or is unlawful, threatening, abusive, harassing, libelous,
defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable; iii. Encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; iv. Unnecessarily includes personal information;
v. Contains a formula, instruction, or advice that could cause harm or injury; vi. The licensed use by the Company hereunder would result in us having any obligation or liability to any party; vii. Is intentionally misleading or fraudulent; or viii.
Violates any of the exclusions to use set forth herein.
Any conduct by a User that in our sole discretion restricts or inhibits any other User from using or enjoying the Application will not be permitted.
THE COMPANY RESERVES THE RIGHT TO DELETE, DISABLE OR OTHERWISE
ELIMINATE FROM THE APPLICATION ANY USER-GENERATED CONTENT THAT THE COMPANY DEEMS VIOLATIVE OF THIS AGREEMENTAND/OR ANY RULE OF LAW, REGULATION OR PROTOCOL, IN ITS SOLE DISCRETION.
The Company has the right, but not the obligation, to monitor all User-Generated Content. The Company has no obligation to post, maintain or otherwise make use of User-Generated Content and does not guarantee distribution of User-Generated Content. The Company may discontinue operation of the Application and/or User-Generated Content, or Your use of the Application and/or
UserGenerated Content, in either case in whole or in part, in its sole discretion. You have no right to maintain or access your User-Generated Content on the Application and the Company has no obligation to return your User-Generated Content or otherwise make it available to You.
8.1 DIGITAL COMMUNICATION.
THE COMPANY IS NOT RESPONSIBLE FOR COMMUNICATION INITIATED BY USERS– REGARDLESS OF THE CAPACITY IN WHICH THEY COMMUNICATE–THROUGH THE WEBSITE AND/OR APPLICATION.
The rights granted by You hereunder may not be terminated, revoked or rescinded and are not subject to reversion. If You become aware that User-Generated Content You have submitted includes any material for which You lack the unrestricted right to grant us the rights set forth above without obligations or liability to any party, You agree to promptly provide us with detailed written notice thereof to Slay by Mari Fitness, LLC, ATTN: LEGAL, Bloom Nutrition, L.L.P., PO Box 552, Orient, NY 11957 and Help@slayapp.com.
The Company strives to keep User-Generated Content secure but cannot guarantee that it will be successful at doing so, given the nature of the Internet. Accordingly, You acknowledge that You bear sole responsibility for adequate security, protection, and backup of User-Generated Content. The Company strongly encourages You, where available and Appropriate, to: (a) use encryption technology to protect User-Generated Content from unauthorized access; (b) routinely archive User-Generated Content; (c) keep Your password and access details secure; and (d) keep Your User-Generated Content or any software that you use or run with the Application and/or Applications current with the latest security patches or updates. WE SHALL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS OR USE, CORRUPTION, DELETION, DESTRUCTION, OR LOSS OF ANY ACCOUNT AND/OR USER-GENERATED CONTENT.
In the event you elect, in connection with the Application to communicate to the Company suggestions for improvements to the Application, or to any other property of the Company, intellectual or otherwise (collectively, “Feedback”), the Company shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and the Company shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title, and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
In keeping with our efforts to maintain Your privacy, the Company will not disclose User-Generated Content to any governmental agency, body and/or department unless lawfully sought by presentation to us of a valid Subpoena, warrant or other such document.
THIRD-PARTY CONTENT AND SERVICES.
You acknowledge that the Application may now or in the future permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by government agencies, public record repositories, advertisers, publishers, content partners, marketing agents, vendors, blockchain, and other third parties, including in the form of “Ads” and/or APIs offered by such parties or other related vendors (“Third-Party Content and Services”), which may or may not include a Platform, and/or the Vendors.
YOU ACKNOWLEDGE THAT THE COMPANY DOES NOT INVESTIGATE, MONITOR,
REPRESENT OR ENDORSE THE THIRD-PARTY CONTENT AND SERVICES
(INCLUDING ANY THIRD-PARTY WEBSITES, OR OTHER SERVICES, AVAILABLE
THROUGH THE APPLICATION). FURTHERMORE, YOUR ACCESS TO AND USE OF
THE THIRD-PARTY CONTENT AND SERVICES IS AT YOUR SOLE DISCRETION AND
RISK, AND COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND
LICENSORS, INCLUDING A PLATFORM, SHALL HAVE NO LIABILITY TO YOU
ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE
THIRD-PARTY CONTENT AND SERVICES. THE COMPANY HEREBY DISCLAIMS ANY
REPRESENTATION, WARRANTY, OR GUARANTY REGARDING THE THIRD-PARTY
CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, WARRANTIES OF HABITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ANY REPRESENTATION, WARRANTY, OR GUARANTY
REGARDING THE AVAILABILITY, QUALITY, RELIABILITY, FEATURES, APPROPRIATENESSS, ACCURACY, COMPLETENESS, OR LEGALITY OF THE THIRDPARTY CONTENT AND SERVICES.
10.3 THIRD-PARTY TERMS OF SERVICE/OTHER AGREEMENT(S).
You acknowledge and agree that Your access to and use of the Third-Party Content and Services and any correspondence or business dealings between You and any Third-Party located using the Application are governed by and require Your acceptance of the terms of service of such Third-Party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein, and that the Company and a Platform are not a party or in anyway bound by the same, nor does the Company nor a Platform bear any responsibility or liability related thereto. Furthermore, You acknowledge and agree that the Third-Party Content and Services and any related third-party terms of service are subject to change by the Applicable Third-Party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over the Internet and with any Third-Party, and you agree that Company and its affiliates, partners, suppliers and licensors, including, but not limited to a Platform and the Vendors, are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that You are not being granted a license to: (i) the Third-Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third-Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third-Party Content or Services or any products, services, processes or technology described or offered therein.
10.4 RELIANCE ON INFORMATION.
IN ALL INSTANCES, IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY,
TIMELINESS, COMPLETENESS, OR USEFULNESS OF THE APPLICATION,
INFORMATION STORED ON OR ACCESSIBLE BY THE APPLICATION, AND THIRD-
PARTY CONTENT AND SERVICES. UNDER NO CIRCUMSTANCES WILL THE
COMPANY OR A PLATFORM BE LIABLE FOR ANY LOSS, CLAIM, OR DAMAGE
CAUSED BY YOUR RELIANCE OF THE APPLICATION, INFORMATION STORED ON OR ACCESSIBLE BY THE APPLICATION, AND THIRD-PARTY CONTENT AND SERVICES
You acknowledge and agree that the provision of access to any Third-Party Content and Service shall not constitute or imply any endorsement by the Company or its affiliates, including a Platform, of such Third-Party Content and Services. The Company reserves the right to restrict or deny access to any Third-Party Content and Services otherwise accessible through the Application, although the Company has no obligation to restrict or deny access even if requested by You. The Company does not, nor shall any actions hereinafter taken, except for any written material that expressly waives this provision executed by the Company, endorse, warrant, or guarantee, nor shall the Company be responsible in any way for, the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Application by anyone other than authorized employees of the Company, or spokespersons acting in their official capacities with actual agency authority.
10.6 INAPPROPRIATE MATERIALS.
You understand that by accessing and using the Third-Party Content and Services that You may encounter information, materials and subject matter: (i) that You or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language; and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, You agree to use the Third-Party Content and Services at Your sole risk and that Company and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
10.7 USE OF THIRD-PARTY CONTENT AND SERVICES.
You agree that the Third-Party Content and Services contain proprietary information and material that is owned by Company and its affiliates, partners, suppliers and licensors and is protected by applicable intellectual property and other laws, including, without limitation, pursuant to copyright, and that You will not use such proprietary information or materials in any way whatsoever except for permitted use of the Third-Party Content and Services. No portion of the Third-Party Content and Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third-Party Content and Services, in any manner, and You shall not exploit the Third-Party Content and Services in any unauthorized way whatsoever, including, without limitation, by trespass or burdening network capacity. You agree that You will not use any Third-Party Content and Services in a manner that would infringe or violate the rights of any other party, and that Company is not in any way responsible for any such use by You.
LIABILITY OF USERS.
YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL COMPLAINTS, CLAIMS,
CAUSES OF ACTION, AND/OR LAWSUITS BY ANYONE CAUSED BY OR ARISING OUT
OF YOUR BREACH OF THIS AGREEMENT AND/OR YOUR USE OF THE APPLICATION
AND/OR USER-GENERATED CONTENT, INCLUDING THOSE THAT ARISE FROM
THIRD-PARTIES. YOU SHALL INDEMNIFY, DEFEND, REIMBURSE, AND HOLD
HARMLESS THE COMPANY AND A PLATFORM FOR ANY AND ALL SUCH LIABILITY TO THE EXTENT PERMITTED BY LAW AND IN ACCORDANCE WITH THIS AGREEMENT.
ACTIONS BY THE COMPANY.
If the Company has reason to believe that You have engaged in any activities restricted by this Agreement, or any activities similar to the spirit and intent of such restrictions, or are in derogation of any responsibilities that You may have hereunder, then the Company may take various actions to protect the Company, other Users, a Platform, and other third-parties’ claims, fees, fines, penalties, and any other liability. The actions the Company may take include, but are not limited to the following, and the Company does not hereby waive any other rights or remedies it may have:
i. The Company may terminate, close, suspend, or limit Your access to your the
Application or Account in whole or in part; ii. The Company may contact ThirdParties, Your bank or credit card issuer, other Users, and/or law enforcement, as deemed appropriate in the Company’s sole discretion;
The Company may, without notice to You, update inaccurate information You provided;
The Company may refuse to provide an account, access to the Application, or Account or any other Application or services to You in the future; and/or
The Company may take legal action against you.
FITNESS WAIVER AND ASSUMPTION OF THE RISK.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE
APPLICATION INVOLVES RISKS OF INJURY TO PERSONS AND PROPERTY,
INCLUDING THOSE DESCRIBED BELOW, AND YOU ASSUME FULL
RESPONSIBILITY FOR SUCH RISKS. IN CONSIDERATION OF BEING
PERMITTED TO USE ANY SERVICES PROVIDED BY THE COMPANY FOR ANY PURPOSE INCLUDING, BUT NOT LIMITED TO, PLANS, TUTORIALS OR GUIDES,
WORKOUT(S) OR OTHER FEATURE OF THE APPLICATION, OR
PARTICIPATION IN ANY WAY, YOU AGREE TO THE FOLLOWING: YOU
HEREBY RELEASE AND HOLD THE COMPANY, ITS DIRECTORS, OFFICERS,
EMPLOYEES, AND AGENTS HARMLESS FROM ALL LIABILITY TO YOU AND
YOUR PERSONAL REPRESENTATIVES, ASSIGNS, HEIRS, AND NEXT OF KIN
FOR ANY LOSS OR DAMAGE AND FOREVER GIVES UP ANY CLAIM OR
DEMANDS THEREFORE, ON ACCOUNT OF INJURY TO YOUR PERSON OR
PROPERTY, INCLUDING INJURY LEADING TO DEATH OF YOU, WHETHER
CAUSED BY THE ACTIVE OR PASSIVE NEGLIGENCE OF THE COMPANY OR
OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW, WHILE YOU ARE USING THE APPLICATION OR FOR ANY ALLEGED INJURIES ARISING THEREFROM IN ANY WAY.
YOU REPRESENT (A) THAT YOU ARE IN GOOD PHYSICAL CONDITION AND
HAVE NO DISABILITY, ILLNESS, OR OTHER CONDITION THAT COULD
PREVENT YOU FROM UTILIZING THE PLANS, TUTORIALS OR GUIDES,
WORKOUT(S) OR OTHER FEATURE OF THE APPLICATION, EXERCISING
WITHOUT INJURY OR IMPAIRMENT OF YOUR HEALTH, AND (B) THAT YOU HAVE CONSULTED A PHYSICIAN CONCERNING AN EXERCISE PROGRAM THAT WILL NOT RISK INJURY TO YOU OR IMPAIRMENT OF YOUR HEALTH.
SUCH RISK OF INJURY INCLUDES (BUT IS NOT LIMITED TO): INJURIES
ARISING FROM USE BY YOU OR OTHERS OF PLANS, TUTORIALS OR GUIDES,
WORKOUT(S) OR OTHER FEATURE OF THE APPLICATION; INJURIES ARISING
FROM PARTICIPATION BY YOU OR OTHERS IN SUPERVISED OR
UNSUPERVISED ACTIVITIES; INJURIES AND MEDICAL DISORDERS ARISING
FROM EXERCISING SUCH AS HEART ATTACKS, STROKES, HEAT STRESS, SPRAINS, BROKEN BONES, AND TORN MUSCLES AND LIGAMENTS, AMONG OTHERS; AND ACCIDENTAL INJURIES OCCURRING ANYWHERE.
YOU FURTHER EXPRESSLY AGREE THAT THE FOREGOING RELEASE,
WAIVER AND INDEMNITY AGREEMENT IS INTENDED TO BE AS BROAD AND
INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF PENNSYLVANIA
AND THAT IF ANY PORTION THEREOF IS HELD INVALID, IT IS AGREED THAT
THE BALANCE SHALL, NOTWITHSTANDING, CONTINUE IN FULL FORCE AND
EFFECT. YOU HAVE READ THIS RELEASE AND WAVIER OF LIABILITY AND INDEMNITY CLAUSE, AND AGREES THAT NO ORAL REPRESENTATIONS,
STATEMENTS OR INDUCEMENT APART THEREFROM HAVE BEEN MADE.
ASSUMPTION OF THE RISK:
YOU ACKNOWLEDGE THAT THE PLANS, TUTORIALS OR GUIDES,
WORKOUT(S) OR OTHER FEATURE OF THE APPLICATION MAY INCLUDE
PARTICIPATION IN STRENUOUS PHYSICAL ACTIVITIES, INCLUDING, BUT
NOT LIMITED TO, AEROBIC DANCE, WEIGHT TRAINING, STATIONARY
BICYCLING, VARIOUS AEROBIC CONDITIONING MACHINERY AND/OR VARIOUS NUTRITIONAL PROGRAMS OFFERED BY THE COMPANY (THE “PHYSICAL ACTIVITIES”).
YOU ACKNOWLEDGES THESE PHYSICAL ACTIVITIES INVOLVE THE
INHERENT RISK OF PHYSICAL INJURIES OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, HEART ATTACKS, MUSCLE STRAINS, PULLS OR
TEARS, BROKEN BONES, SHIN SPLINTS, HEAT PROSTRATION, KNEE/LOWER BACK/FOOT INJURIES AND ANY OTHER ILLNESS, SORENESS, OR INJURY HOWEVER CAUSED, OCCURRING DURING OR AFTER YOUR PARTICIPATION IN THE PHYSICAL ACTIVITIES.
YOU FURTHER ACKNOWLEDGE THAT SUCH RISKS INCLUDE, BUT ARE NOT
LIMITED TO, INJURIES CAUSED BY THE NEGLIGENCE OF AN INSTRUCTOR
OR OTHER PERSON, DEFECTIVE OR IMPROPERLY USED EQUIPMENT, OVEREXERTION OF YOU, SLIP AND FALL BY YOU, OR AN UNKNOWN HEALTH PROBLEM OF YOU.
YOU AGREE TO ASSUME ALL RISK AND RESPONSIBILITY INVOLVED WITH
YOUR PARTICIPATION IN THE PHYSICAL ACTIVITIES. YOU AFFIRM THAT
YOU IS IN GOOD PHYSICAL CONDITION AND DOES NOT SUFFER FROM ANY
DISABILITY THAT WOULD PREVENT OR LIMIT PARTICIPATION IN THE
PHYSICAL ACTIVITIES. YOU ACKNOWLEDGE PARTICIPATION WILL BE
PHYSICALLY AND MENTALLY CHALLENGING, AND YOU AGREE THAT IT IS
THE RESPONSIBILITY OF YOU TO SEEK COMPETENT MEDICAL OR OTHER
PROFESSIONAL ADVICE, REGARDING ANY CONCERNS OR QUESTIONS
INVOLVED WITH THE ABILITY OF YOU TO TAKE PART IN THE PHYSICAL
ACTIVITIES. BY ASSENTING TO THIS AGREEMENT, YOU ASSERT THAT YOU
IS CAPABLE OF PARTICIPATING IN THE PHYSICAL ACTIVITIES. YOU AGREE
TO ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR EXCEEDING YOUR
Company does not warrant that the Application will be compatible or interoperable with Your Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with your Mobile Device. FURTHERMORE, YOU ACKNOWLEDGE THAT
COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE
OF YOUR MOBILE DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN
PERMANENT THE DAMAGE TO YOUR MOBILE DEVICE, LOSS OF THE DATA LOCATED
ON YOUR MOBILE DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED
ON YOUR MOBILE DEVICE. YOU ACKNOWLEDGE AND AGREE THAT COMPANY AND
ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.
Compatible versions of operating systems and compatible devices supported by the Application will be available for review on the iTunes App Store and/or Google Play page for the Company and/or the Application.
YOU ACKNOWLEDGE THAT YOU (NOT COMPANY OR A PLATFORM) ARE RESPONSIBLE
FOR ADDRESSING ANY THIRD-PARTY CLAIMS RELATING TO YOUR USE OR
POSSESSION OF THE APPLICATION, AND AGREE TO NOTIFY THE COMPANY OF ANY THIRD-PARTY CLAIMS RELATING TO THE APPLICATION OF WHICH YOU BECOME
AWARE. FURTHERMORE, YOU HEREBY RELEASE THE COMPANY AND A PLATFORM
FROM ANY LIABILITY RESULTING FROM YOUR USE OR POSSESSION OF THE
APPLICATION, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: (I) ANY PRODUCT
LIABILITY CLAIMS; (II) ANY CLAIM THAT THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) ANY CLAIM ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
YOU AGREE TO RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY,
AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES,
AND THEIR RELATED COMPANIES, INCLUDING ANY PLATFORM, FROM AND AGAINST
ANY AND ALL CLAIMS, LIABILITIES, LOSSES, DAMAGES, OBLIGATIONS, COSTS AND EXPENSES (INCLUDING ACTUAL ATTORNEYS’ FEES AND COSTS INCURRED) ARISING OUT OF, RELATED TO, OR THAT MAY ARISE IN CONNECTION WITH:
i. ANY CLAIM(S) WHATSOEVER THAT YOU EXERCISE, WORKOUT
AND/OR TRAINING OF ANY KIND RELATED TO THE APPLICATION
CAUSED INJURY TO YOU AND/OR A THIRD PARTY WHETHER IN THE
COURSE OF YOUR DIRECT USE OF THE APPLICATION OR
OTHERWISE; ii. YOUR ACCESS TO OR USE OF THE APPLICATION AND/OR ACCOUNT
AND/OR WEBSITE AND/OR YOUR RELIANCE ON ANY INFORMATION
REFLECTED THEREIN; iii. USER-GENERATED CONTENT PROVIDED BY YOU
OR THROUGH USE OF
YOUR ACCOUNT AND/OR ACCOUNT, THAT INTERACTS WITH THE
APPLICATION’S DATABASES; iv. ANY ACTUAL OR ALLEGED VIOLATION
OR BREACH BY YOU OF THIS AGREEMENT;
v. ANY ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT THAT YOU HAVE MADE TO THE COMPANY; vi. YOUR ACTS OR OMISSIONS;
vii. LOSS OF OR DAMAGE TO USER-GENERATED CONTENT FOR ANY REASON.
YOU AGREE TO COOPERATE FULLY WITH THE COMPANY AND ANY PLATFORM IN THE
DEFENSE OF ANY CLAIM THAT IS THE SUBJECT OF YOUR OBLIGATIONS HEREUNDER, AND YOU HEREBY ACCEPT THE PROVISIONS OF THIS AGREEMENT IN FULL, INCLUDING SPECIFICALLY YOUR AGREEMENTS IN SECTION 17 REGARDING SELECTION OF COUNSEL.
YOU EXPRESSLY AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE
APPLICATION AND ANY SERVICES OR CONTENT RELATED THERETO, INCLUDING
THIRD-PARTY CONTENT AND SERVICES, AND USER-GENERATED CONTENT, ARE
PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING ANY:
i. WARRANTIES THAT ANY PLANS, TUTORIALS OR GUIDES,
WORKOUT(S) OR OTHER FEATURE OF THE APPLICATION WILL
PROVIDE ANYTHING OTHER THAN ILLUSTRATIVE INFORMATION,
OR PROVIDE ACCURATE, ACTIONABLE INFORMATION ON WHICH
YOU CAN UNCONDITIONALLY RELY FOR FITNESS AND/OR
TRAINING OR IN ANY OTHER CIRCUMSTANCE; ii. WARRANTIES THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; iii.
WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY,
SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL
CONTENT OF THE APPLICATION, AND ANY SERVICES OR CONTENT
RELATED THERETO, INCLUDING THIRD-PARTY CONTENT AND SERVICES, AND USER-GENERATED CONTENT iv. WARRANTIES OF
TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE;
v. WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR
ADVERTISED ON OUR APPLICATION OR ACCESSED THROUGH THE APPLICATION; vi. WARRANTIES CONCERNING THE ACCURACY OR
RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION; vii. WARRANTIES THAT YOUR USE OF THE APPLICATION WILL BE SECURE OR UNINTERRUPTED; AND viii.
WARRANTIES THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED.
THE COMPANY SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY ADVICE THAT MAY
LEAD TO PHYSICAL DAMAGE, OR INJURY. ANY CONTENT OR SOFTWARE
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APPLICATION IS
DONE AT YOUR OWN DISCRETION AND RISK. THE COMPANY SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT OR SOFTWARE.
IN THE EVENT OF ANY FAILURE OF THE APPLICATION TO CONFORM TO AN
APPLICABLE WARRANTY, IF ANY DOES EXIST, WHICH THIS PARAGRAPH DOES NOT
EXPRESSLY CREATE, THEN YOU MAY NOTIFY ANY PLATFORM, AND ANY PLATFORM
MAY REFUND THE PURCHASE PRICE OF THE APPLICATION TO YOU; AND THAT, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY PLATFORM WILL HAVE
NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE
APPLICATION, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, OR EXPENSES ATTRIBUTABLE O ANY FAILURE TO ANY WARRANTY WILL BE THE COMPANY'S SOLE RESPONSIBILITY, IF AT ALL.
16. LIMITATION ON LIABLITY.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY, AND ITS EMPLOYEES, AGENTS,
DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED
COMPANIES, INCLUDING, BUT NOT LIMITED TO ANY PLATFORM AND THE VENDORS,
BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE APPLICATION, SERVICES, AND/OR THIS AGREEMENT. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE APPLICATION IS TO STOP USING THE APPLICATION.
SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY
REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN
CONNECTION WITH THE APPLICATION OR ANY LINKS ON THE APPLICATION,
INCLUDING THOSE PROVIDED BY THE COMPANY, AS WELL AS BY REASON OF ANY
INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION
WITH THE APPLICATION OR ANY LINKS ON THE APPLICATION, AND ALSO TO
PHYSICAL DAMAGES OR INJURY SUFFERED AS A RESULT OF ANY INFORMATION,
ADVICE, OR THE LIKE RECEIVED BY YOU EITHER DIRECTLY OR INDIRECTLY FROM
THE APPLICATION. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO
DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY, USER-GENERATED CONTENT, OR CONDUCT OF A THIRD-PARTY ON THE APPLICATION, OR ANY OTHER USERS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO
EVENT SHALL THE CUMULATIVE LIABILITY OF THE COMPANY AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY
CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE
APPLICATION, OR IN ANY WAY RELATED TO THIS AGREEMENT, MUST BE FILED WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED.
IN SOME JURISDICTIONS LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING, THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
DISPUTES INVOLVING THE COMPANY.
Pre-Arbitration Dispute Resolution. The Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing us at Help@slayapp.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice should be sent to Help@slayapp.com. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If the Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or the Company may commence an arbitration proceeding.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU
AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER
IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS
BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT
CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY
NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE,
OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING
MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
In the event that a lawsuit is filed, or a claim is made and demanded, by You, or on Your behalf in any form whatsoever, against a User of the Application, and the Company needs to seek legal counsel for any involvement in the matter, You or Your legal representative shall pay for all legal fees incurred by the Company relating thereto. In such matters, and in any other matter in which You are liable to the Company for payment of attorneys’ fees, as set forth herein, or otherwise permitted by law, nothing contained in this Agreement, including this clause, shall in any way limit the Company's right to hire legal counsel of its choice.
The Company reserves the right in its sole discretion and at any time to terminate, revoke, or suspend your account and/or block your access to the Application for any reason including, without limitation if you have failed to comply with the letter, intention, or spirit of this Agreement. You agree that the Company and a Platform shall not be liable to you or any Third-Party for any termination or suspension of your account or for blocking Your access to the Application and/or any User-Generated Content that may reside there that was generated by You. You agree that You have no rights or interests in any information, data, or functionality of the Application, regardless if the same relates to You.
You may terminate your Account at any time by following instructions within the Application to terminate the account. The Company shall have no obligation to retain, preserve or maintain Your User-Generated Content following Your termination of an Account.
Any suspension or termination shall not affect Your obligations to the Company under this Agreement. The provisions of this Agreement, which by their nature survive the suspension or termination of Your account and access of the Application, including, but not limited to the rights and licenses that You have granted hereunder, indemnities, releases, disclaimers, limitations on liability, and provisions related to choice of law.
CHOICE OF LAW; MANDATORY ARBITRATION.
THIS AGREEMENT, THE APPLICATION, AND/OR ANY DISPUTE ARISING
THEREFROM SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. THE PARTIES WAIVE ANY
OTHER VENUE TO WHICH EITHER PARTY MIGHT BE ENTITLED BY DOMICILE OR OTHERWISE. THE COMPANY MAKES NO REPRESENTATION THAT MATERIALS ON THE APPLICATION ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER
LOCATIONS. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO
THIS GRANT OF A LICENSE, OR THIS AGREEMENT, YOU HEREBY AGREE THAT ALL
DISPUTES ARISING OR TOUCHING THIS AGREEMENTOR THE APPLICATION SHALL
PROMPTLY BE SUBMITTED TO ARBITRATION IN PHILADELPHIA, PENNSYLVANIA,
BEFORE ONE ARBITRATOR IN ACCORDANCE WITH THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. THE ARBITRATOR MAY ASSESS COSTS IN FAVOR OF
THE COMPANY ONLY, INCLUDING ATTORNEYS' FEES ACTUALLY INCURRED, IN SUCH MANNER AS THE ARBITRATOR DEEMS FAIR AND EQUITABLE. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON ALL PARTIES, AND
JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF THIS AGREEMENT, THE APPLICATION, AND/OR ANY DISPUTE ARISING THEREFROM.
You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.
DISSOLUTION, MODIFICATION, AND MAINTENANCE.
Modifications to this Agreement or Additional Terms (as hereinafter defined) will be effective immediately upon notice, either by posting on the Application, posting on the Website, posting on the iTunes App Store page for the Company and/or the Application by notification by email or conventional mail, or any other method allowed for by this Agreement. It is your responsibility to review this Agreement and the Application from time to time for any changes or Additional Terms. Your access and use of any the Application following any modification of this Agreement or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms or to any Additional Terms, You may terminate your Account as provided above or, if You do not have an account, Your only recourse is to immediately discontinue use of the Application. The Company, and not a Platform, is solely responsible for any maintenance or support that may be required regarding the Application, as set forth herein, or required by Applicable law. You hereby acknowledge that a Platform has no obligation whatsoever to furnish any maintenance or support services with respect to the Application.
The Company reserves the right to provide You with operating rules or Additional Terms that may govern Your use of the Application generally, specifically, in whole, in part, or any combination thereof (“Additional Terms”). Any Additional Terms that we may provide to You will be incorporated by reference into this Agreement. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.
If any part of This Agreement is held to be legally unenforceable by a court of competent jurisdiction, the remainder may still be enforced as if This Agreement were written without said unenforceable portions.
Except as permitted herein otherwise, You shall not assign this Agreement or any rights or obligations herein without the prior written consent of the Company, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect; however, the Company may assign this Agreement freely without notice to You.
Except as provided herein, the failure to exercise a right or require performance of an obligation under This Agreement shall not effect the Company’s ability to exercise such right or require such performance at any time thereafter, nor shall the waiver of a breach constitute waiver of any subsequent breach.
The section titles or headings in This Agreement are for convenience only and have no legal or contractual effect.
Nothing contained in This Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
The Company shall not be liable for any default, delay in the performance of any of its obligations under this Agreement, or Your inability to access the Application and/or any User-Generated Content if such default or delay is caused, directly or indirectly, by forces beyond the Company's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications (including third party integrations related to social media, server malfunctions, or any other mechanical, electronic, or communication error), power outages, supply shortages or the failure of any Third-Party to perform any commitment relating to the production or delivery of any equipment or material required for the Company to perform its obligations hereunder. The parties have specifically considered force majeure scenarios— including, but not limited to, pandemic, civil unrest and/or governmental action—and agreed that such shall excuse the Company from performance under this Agreement.
COMPLAINTS OR COMMENTS.
Any complaints or comments regarding the Application should be directed to the Company at: Help@slayapp.com.
You hereby acknowledge and agree that a Platform, and a Platform’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon Your acceptance of this Agreement, a Platform will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third-party beneficiary thereof.
The Company may give notice by means of a general notice by posting on the Application, posting on the Website, posting on the iTunes App Store page for the Company and/or the Application, by e-mail to your e-mail address on record in the Company’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company's account information. Such notice shall be deemed to have been given immediately after mailing, emailing or posting. You may give notice to the Company, which shall be deemed given when actually received by the Company, at any time by a written communication delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the Company at the following address: Slay by Mari Fitness, LLC, ATTN: LEGAL, Bloom Nutrition, L.L.P., PO Box 552, Orient, NY 11957 and Help@slayapp.com. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
What information do we collect?
We collect information from you when you register for an Account on our Application or fill out a form. We will collect any and all information that you input. We may also collect your physical location through “geo-tagging,” first and last name, home or other physical address, including, but not limited to, order history, date of birth, friends list, User-Generated Content, Facebook information, street name and name of a city or town, and billing information, such as billing name and address, bank account number, routing number and in some instances a credit card number and/or other identifier that permits the physical or online contacting of a specific individual, depending on your activities while on the Application.
What we use information for
Any of the information we collect from you may be used in one of the following ways: to personalize your experience (your information helps us to better respond to your individual needs); to improve the Application (we continually strive to improve our offerings based on the information and feedback we receive from you); to improve customer service (your information helps us to more effectively respond to your customer service requests and support needs); to send periodic emails. We can also use your information to monitor and assemble analytics pertaining to an individual’s use of the Application. The Company may use the information that we collect to setup the Accounts for registered users and may also use the information to send information regarding our company or partners, such as promotions and events. The email address you provide may be used to send you occasional company news, updates, related product or service information, etc. If at any time you would like to unsubscribe from receiving future emails, please reply to the Company email and request that your email address be removed from the list.
We may disclose any information (other than billing information) to outside parties.
We may sell, trade, or otherwise transfer to outside parties your personally identifiable information. This includes trusted third parties who assist us in operating our Application, conducting our business, or servicing you, so long as those parties agree to keep this information confidential. We may also release your information when we believe release is Appropriate to comply with the law, enforce our site policies, or protect ours or others’ rights, property, or safety. User email addresses and any personal customer information may be sold to or otherwise shared with third parties for marketing purposes. The Company may assign any and all personal customer information to a successor entity should the Company be the subject of a merger, acquisition or any other similar such transaction in which the control of the Company substantially changes. Individual records may at times be viewed or accessed only for the purpose of resolving a problem, support issue, or as may be required by law. Of course, registered users are responsible for maintaining the confidentiality and security of their user registration and password. The Company may aggregate data together in an anonymous fashion to generate reporting for internal analysis or distribution as it sees fit and may, at its sole discretion, choose to offer such reporting for promotional purposes and/or monetary gain. The Company may also track and analyze non-identifying and aggregate usage and volume statistical information from our visitors and customers and provide such information to third parties.
Third party links/transactions
Occasionally, at our discretion, we may include or offer third party products or services on our Application, including through the implementation of advertisements. These third party sites have separate and independent privacy policies. We therefore have no responsibility or liability for the content and activities of these linked sites. Nonetheless, we seek to protect the integrity of our Application and welcome any feedback about these sites.
Furthermore, when Users interact with one another, especially in the context of the buyer/seller relationship, Users’ emails, first and last names and other info may be transferred to other affiliated third party businesses. The Company shall under no circumstances be responsible for what buyer/seller or other affiliated third party businesses do with Users’ information.
California Online Privacy Protection Act Compliance
Because we value your privacy we have taken the necessary precautions to be in compliance with the California Online Privacy Protection Act. We therefore will not distribute your personal information to outside parties without your consent.
Residents of the State of California, under certain provisions of the California Civil Code, have the right to request from companies conducting business in California a list of all third parties to which the company has disclosed certain personally identifiable information as defined under California law during the preceding year for third party direct marketing purposes. You are limited to one request per calendar year. In your request, please attest to the fact that you are a California resident and provide a current California address for our response. You may request the information in writing at Bloom Nutrition, L.L.P., PO Box 552, Orient, NY 11957 and Help@slayapp.com.
Childrens Online Privacy Protection Act Compliance
We are in compliance with the requirements of COPPA (Childrens Online Privacy Protection Act), we do not collect any information from anyone under thirteen (13) years of age. Our Application, products and services are all directed to people who are at least thirteen (13) years old or older.
Keeping Your Information Secure
We have implemented security measures we consider reasonable and appropriate to protect against the loss, misuse and alteration of the information under our control. Please be advised, however, that while we strive to protect your personally identifiable information and privacy, we cannot guarantee or warrant the security of any information you disclose or transmit to us online and are not responsible for the theft, destruction, or inadvertent disclosure of your personally identifiable information. In the unfortunate event that your “personally identifiable information” (as the term or similar terms are defined by any Applicable law requiring notice upon a security breach) is compromised, we may notify you by email (at our sole and absolute discretion) to the last email address you have provided us in the most expedient time reasonable under the circumstances; provided, however, delays in notification may occur while we take necessary measures to determine the scope of the breach and restore reasonable integrity to the system as well as for the legitimate needs of law enforcement if notification would impede a criminal investigation. From time to time we evaluate new technology for protecting information, and when Appropriate, we upgrade our information security systems.
Contact and Opt-Out Information
privacy statement or policy, in any form, is valid unless we post a new or revised policy to the
Slay by Mari Fitness, LLC (the “Company”) and/or http://www. ___________________.com and/or the Application, and/or the licensors (collectively, the “Website”), the Application, the Company’s licensors, or all of the preceding, respects the intellectual property interests of other parties. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Company’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying the Company and its affiliates that your copyrighted material has been infringed:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A copy of the copyrighted work that you claim has been infringed, or a description of the copyrighted work, including the URL (i.e., web page address) of the location where the copyrighted work exists;
Identification of the URL or other specific location on the Application where the material that you claim is infringing is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
Your address, telephone number, and e-mail address.
The Company’s Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:
LMS Legal LLC
The Grain House
196 West Ashland Street Doylestown, PA 18901 phone:
(267) 908-5058 fax: (267) 388-3780
ACCEPTING ANY MODIFICATION TO THESE TERMS IN ACCORDANCE WITH THE ABOVE, YOU
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE
APPLICATION, YOU ARE SPECIFICALLY AND EXPRESSLY AGREEING TO THE FITNESS
WAIVER AND ASSUMPTION OF THE RISK REFLECTED HEREIN IN PARAGRAPH 11.3. IF YOU
ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY,
YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO
THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE
SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “DECLINE” BUTTON AND YOU MAY NOT USE THE APPLICATION.
These Terms were last revised on 12/09/2020.