User Terms of Service
Effective Date of these User Terms of Service: 12.11.2020.
- Welcome to our App
Betty Armas, doing business as unlimitedbybettyarmas (“Trainer” “we,” “our,” or “us”), uses a mobile application under the name unlimitedbybettyarmas(„App“)licensed to us by our partner LEAN ON DIGITAL, INC (“App Developer”) for use by you (“User”). Through the App we are providing you with the unique set of services and content that, among other, may include: (i) personal training programs presented in a form of a set of videos or otherwise and collected in various subscription packages that you choose as your training program; (ii) content that concerns personal training, such is blog, posts, personal training recommendations, live and other events, notifications, and other content that we may find useful; (iii) other personal training related services and content (collectively (i)-(iii) are “Services”). We provide access to the Services and App, subject to your acceptance of all of the following User Terms of Service (“User Terms of Service”).
THIS AGREEMENT IS BETWEEN US AND YOU. BY ACCEPTING THIS AGREEMENT, BY ACCESSING, DOWNLOADING, COPYING, AND/OR USING THE APP AND/OR THE SERVICES, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
WE MAY AUTHORIZE THE APP DEVELOPER TO PERFORM SOME SERVICES RELATED TO YOUR USE OF THE APP ON OUR BEHALF (FOR EXAMPLE BILLING) IN WHICH CASE THIS AGREEMENT IS STILL APPLICABLE, UNLESS OTHERWISE DIFFERENTLY STATED.
ARBITRATION NOTICE FOR USERS: THESE USER TERMS OF SERVICE CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US AND/OR THE APP DEVELOPER. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND TRAINER AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND TRAINER WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Please note: Be aware that exercise involves certain risks, including but not limited to, serious neck and spinal injuries resulting in complete or partial paralysis, heart attack, stroke or even death. Also, injuries could occur to bones, joints or muscles. Slips, falls, and unintended loss of balance could result in muscular, neurological, orthopedic or other bodily injury. The food and supplements that you are using may also have impact on your health, so take all necessary and usual precautions before consummation. By accepting this Agreement, you confirm that understand that part of the risk involved in undertaking any activity, program, consummation of food and supplements is relative to your own state of fitness or health (physical, mental, or emotional) and to the awareness, care and skill which you conduct yourself. By exercising and consummation of food and supplements you expressly assume all of the delineated risks of injury, all other possible risk of injury, and even risk of possible death, which could occur by reason of your participation. Prior to commencing any exercise, you should undertake physical examination and consultation with your physician as to physical activity and diet so that you are aware of what is appropriate for you. Even if you ask us for certain advice and we provide you with certain recommendation, be aware that it still remains only a recommendation and not the actual advice and that we cannot replace the advice and expertise of a physician. By accepting this Agreement you hereby waive, release and forever discharge us and the App Developer from any and all responsibilities or liability for any present and future injuries or damages resulting or arising from your participation in any activities and consummation of food and supplements including but not limited to exercise, personal training, use of the equipment, recommended food, nutrition and other recommendation including any injuries and damages caused by the negligent act or omission of us. Additional limitation of liability and waivers are displayed in Section 12 and 13 of these User Terms of Service.
- User Account
In order to use the App to access the Services, you must first register with us and create a User Account (“User Account”). Your registration and use of a User Account are subject to these User Terms of Service.
By registering for a User Account, you agree and confirm that:
- All information provided to us and the App Developer is accurate, current, and complete; and that you will maintain and update such information as it changes;
- You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions;
- You are of legal age to form a binding contract, or you are over the age of 18. The Services and the App are not intended for, nor targeted to, anyone under the age of 18;
- Your registration and your use of the Services, including but not limited to the App is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.
Your registration and your User Account, and your rights under this Agreement, are personal to you and are not transferable by you to any party.
Payment Methods. We enable you to make in-app purchases from us. When you make in-app purchase your purchase will be made via your Apple iTunes or Google Play account. We and the App Developer do not collect any financial or billing information from you in relation to such a transaction. Please review the relevant app store's terms and notices to learn about how your payment is processed. We and the App Developer keep a record of the purchases you make, the time at which you make those purchases and the amount spent.
Termination of User Account. In the event that you breach any obligation you undertake under the User Terms of Service or any of the representations and warranties you make herein, as determined in our sole discretion, we reserve the right to reject, suspend, or terminate your registration and/or your use of a User Account, and/or your access to the Services.
Use of User Accounts for Development Purposes. We and the App Developer may use all your utilization of a User Account for the purpose of developing software, applications, or programs that will interface with the App.
- License (Sub-License) to Use the App and Websites; Intellectual Property
Limited License. We grant you a limited, non-exclusive, non-transferable license (or sub-license, where applicable by our agreement with the App Developer) to access, view, download, install, and use the App for the purpose of using the Services, including the initiation of orders to us and participating in Service performance. Except as expressly permitted by these User Terms of Service, you may not modify, reproduce, distribute, publish, reverse-engineer, create derivative works out of, decompile, deep link, publicly display, or otherwise exploit for any purpose, the App, Services or our Property, as defined below, or any portion thereof. You may not remove or alter, or reuse in any manner or for any other purpose, any copyright, trademark or other proprietary notices that have been placed on our Property. You may not collect and use the product listing, pictures, or descriptions within our Property for any commercial purpose. All rights not expressly granted to you by this Agreement remain our property and property of its licensors. We may impose other restriction in accordance with our license agreement with the App Developer.
No Rights to Our Property. The App content downloaded or accessed by you pursuant to these User Terms of Service, including without limitation all of the text, images, videos, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content, other than user content, as defined below, and all software embodied in the App, or otherwise used by us to deliver the Services (collectively, the “Property”), is our sole property and/or of third parties provided under license to, or used with permission by, us. We reserve all rights in the Property, including without limitation copyright, trademark, patent, and trade secret rights, and no rights in such Property are granted except as expressly provided herein.
Trademarks. The marks “unlimitedbybettyarmas”, our logo, among other marks, are our registered or unregistered trademarks and may not be used in connection with any service or products other than those provided by us, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits we.
No Illegal Uses. The Property licensed (or sub-licensed, as the case may be) hereunder shall not be used for any purpose not specifically contemplated by these User Terms of Service, or for any illegal purpose, or to commit or facilitate any act by any person in violation of any law or regulation, and/or any fraud against any person.
Third-Party Property. The App feature the trademarks, service marks, images, and logos of third parties, including those of the App Developer (“Third-Party Property”). Each third-party owner retains all rights in such Third-Party Property. Any use of such marks, or any others displayed in the App, inures solely to the benefit of their respective owners. Our use of such Third-Party Property does not imply any affiliation or relationship between we and the third party nor any endorsement of us or the Services by such third party.
- In-App Purchases
Authorization to Charge In-App Purchases. When you make in-app purchase your purchase will be made via your Apple iTunes or Google Play account, and we and the App Developer do not directly process you purchase. Please review the relevant app store's terms and notices to learn about how your payment is processed. All purchases, orders, and charges authorized in relation to using the App and/or the Services are also subject to the terms and conditions set forth by the entities that issue your payment instruments. You are responsible for complying with those terms and conditions, and you are responsible for payment of all charges and related fees imposed by such entities pursuant to those terms and conditions. There is no limit on the frequency of transactions you may make using your User Account. However, we reserve the right to impose limits without notice on the amount of transaction(s) you make.
Failed Transactions. In the event that you are unable to successfully make an in-app purchase, please revert to contacts provided in your Apple iTunes or Google Play account. We would also be happy to help you if you have any issues with regards to in-app purchases and our contact details are provided below.
Prohibited Transactions. The Services and related in-app purchases may be used only for the bona fide purchase and exchange, through our App, of goods and/or services offered in the ordinary course of our business, and may not be used to process a payment or otherwise transfer money between two parties. The Services in-app purchases may not be used for transactions in which you request cash back from a us or the App Developer. The Services and related in-app purchases shall not be used for the purpose of accepting or transferring security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity. We and the App Developer reserve the right to decline any attempted transaction if it appears that any of these User Terms of Service have been violated.
Debit/Credit Card Statements. In-app purchases may appear on your statement from the card issuing institution as “Lean On Digital” followed by an identifier related to the location of the transaction initiation, the third-party provider of the ordered goods or services, or as an identifier communicated to you to reference a grouping of multiple individual transactions. You agree not to knowingly falsely report such charges as fraudulent or unauthorized claims to your payment instrument issuing institution. A knowingly false report of a fraudulent or unauthorized charge shall be grounds for we, in its discretion, to cancel your User Account, and seek any other remedies available to we.
Transaction Notification. We (or the App Developer, as may be the case) will provide you with an electronic transaction notification as a confirmation that you have made a purchase, through a messaging within the App and/or by email to the email address provided by you, following confirmation of payment of transaction you initiated in relation to the Services.
- Consent to Electronic Disclosures and Notices; Paper Copies
Your electronic acknowledgement of this Agreement, and any other agreements and documents, has the same effect as if you signed them in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if we had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time emailed or messaged to you.
In order to access and retain the electronic Disclosures you will need, and represent that you have, the following: (i) a computer or mobile device with an internet connection; (ii) a valid email address associated with your User Account that can receive emails from us; and (iii) sufficient storage space to save past Disclosures and/or an installed printer to print them.
You have a right to receive Disclosures in paper form. If you wish to receive a paper copy of any Disclosure, you may request a copy of the Disclosure within 180 days of the date of the Disclosure. You may request to cancel your consent to future electronic Disclosures which will be completed in a reasonable time. We reserve the right to terminate your User Account if you withdraw consent to future electronic Disclosures. You may update the information required to contact you electronically by logging into the App.
- Unauthorized Transactions; Lost Devices; Error Resolution
If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you shall notify us immediately, by contacting us directly at our support team, address of which is provided at the end of this document.
Lost Devices. In the event that you lose any mobile device on which the App linked to your User Account is installed, or otherwise learn that your User Account password is compromised (“Lost Device”), you shall notify us immediately by contacting our support team via the below listed address, email address, and/or telephone number.
Our Security; Reporting Requirements. We implement a variety of methods and proprietary protocols to protect you from bad actors who may attempt to access and make fraudulent charges using your User Account. In case you have doubts on any fraudulent charges please notify us of a fraudulent activity. Please note that we do not process directly any payments when you make in-app purchases in relation to the Services offered within the App and that purchase will be processed through your Apple iTunes or Google Play account. We and the App Developer do not assume any liability in relation to payments made through these accounts. You should promptly contact operators of these accounts in case of Lost Device or any alleged fraudulent activity.
User Fraud. If we determine that you have engaged in any fraudulent use of the Services or the App, or use in violation of these User Terms of Service, we have the right to recover any monies required to remedy such fraudulent use and any associated costs. By registering for a User Account, you agree to all additional fees and penalties that we may impose in the event we deem your use of the we platform to be in breach of these User Terms of Service, including without limitation the immediate termination of your User Account.
- Privacy, Security, and User Data
No Access to Financial Information. App is not able or authorized to capture or store your financial account information, or payment details on your mobile device, without your expressly granted permission. You will not be asked by us to disclose your financial account information, or your payment instrument information, or to provide any other sensitive information such as your Social Security number, in connection with any our transaction. If you are asked for such information, you should report the incident to us immediately.
- Third Party Websites and App
As a part of the content we provide you within the App, the App and Services may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Websites"). We and App Developer do not review, monitor, operate and/or control the Third Party Websites and we and App Developer make no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, we are not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. we reserve the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
As a part of the content we provide you within the App, the App and Services may contain referral to applications that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third Party App"). You may also be offered services, products and promotions provided by third parties as part of your use of any Third Party App, but they are not under our control. We and App Developer are not responsible for the content of any Third Party App. You will be responsible for reviewing and understanding any additional terms and conditions associated with any of those third party properties.
- Ideas Submitted to Us; User Content
We do not encourage, and regardless of the previous, we denounce and not accept and may at any time delete any user generated content that violates any applicable regulation, and any user generated content that are related or aimed or might look to relate to proliferation of any form of discrimination or racism, or for any other unsuitable purposes on which we may decide upon our sole and full discretion. None of the Comments or user generated content on the App will be subject to any fiduciary obligation or obligation of confidence on the part of us, and we will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, we will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments. The previously mentioned in this paragraph also applies to the App Developer.
- Copyright Infringement; Digital Millennium Copyright Act
We respect the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the App or through our Services in a way that constitutes copyright infringement, please provide us at the contact below with notification containing the following information required by the Digital Millennium Copyright Act, including Section 512 to Title 17 of the United States Code (“DMCA”):
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
- Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material;
- Information reasonably sufficient to permit us to contact the party alleging infringement, including an address, telephone number, and, if available, an email address;
- A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to the physical address stated at the end of this document.
UNDER UNITED STATES FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us that you believe that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, Section 512(c) to Title 17 of the United States Code, but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. we may also in its sole discretion limit access to the App and the Services, and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Suspension; Modifications and Termination
Termination by User. You may terminate this Agreement at any time by closing your User Account and ceasing to use the Services and App.
Termination by us. We reserve the right to suspend or terminate your User Account and/or your access to the Services at any time, without notice to you, if we believe, in our sole and absolute discretion, that you are in breach of this Agreement, or if we believe that you are using the Services or any App in a manner
harmful to us, our users, or any other third party.
Modification of Services and Terms. We reserve the right to modify the Services and App, any features or aspects of the Services or the App at any time, without notice to you. We may also from time to time amend, update, or change these User Terms of Service. If we do so, it will notify you by messaging within the App or by emailing you at the address provided in your User Account. You are under a continuing obligation to review the current version of these User Terms of Service and our other published policies when using the App and/or Services. You agree that your continued use of your User Account, the Services, or the App shall constitute your agreement to the User Terms of Service as so amended. If you do not agree to the amended User Terms of Service, you must terminate your User Account and cease using the Services and App.
Obligations in the Event of Termination. If your User Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services and App, (c) that the license (or sub-license, as may be the case) provided by us under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your user data and personal information stored by us, and (e) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of our products or for termination of access to your User Account.
Sections 7, 9 and 12-14, any accrued rights and remedies hereunder, including specifically our rights to retain and use user data and personal information and complete any authorized transactions, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
- No Warranties
The Services and App are provided on an “as-is” basis. We and the App Developer do not warrant that the Services or App will operate error-free, without downtime or that they will have the results you may have expected. We may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to the Service or the App.
THE APP, THE SERVICES, AND ALL CONTENT THEREIN ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES (US AND THE APP DEVELOPER, WHICH IS ALSO THE RELEASED PARTY IN THIS SECTION 12) DISCLAIM, WITH RESPECT TO THE APP, THE SERVICES, AND ALL MATERIALS AND ALL OTHER CONTENT THEREIN, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT THE APP, THE SERVICES, AND ALL CONTENT THEREIN WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE APP, THE SERVICES, AND ALL CONTENT THEREIN ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP, THE SERVICES, AND ALL CONTENT THEREIN IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A EFFECTS OF SERVICES ORDERED ON THE APP. YOU (AND NOT US) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE APP, THE SERVICES, AND ALL CONTENT THEREIN. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
WE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN CASE THEY WE OFFERING ANY NUTRITION RELATED SERVICES OR ADVICES, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE APP OR SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, ANY NUTRITION RELATED MATTERS SUCH AS MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION. The previously mentioned in this paragraph also applies to the App Developer.
We are not responsible for the nutrition related purchases that you may make based on recommendations displayed in the Services or the App.
Because we do not control the security of the internet, or other networks you use to access the Services, we are not responsible for the security of information that you choose to communicate with we while it is being transmitted. We are not responsible for any data lost during transmission.
- Limitations of Liability
YOU PERFORM EXERCISES OFFERED BY FITNESS PARTNERS AT YOUR OWN RISK. YOU SHOULD BE AWARE THAT THERE ARE INHERENT PHYSICAL AND MENTAL HEALTH RISKS ASSOCIATED WITH EXERCISE, INCLUDING RISK OF INJURY OR ILLNESS. PRIOR TO PARTICIPATING IN ANY OF EXERCISE ACTIVITIES, YOU SHOULD SEEK THE ADVICE OF YOUR DOCTOR OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH IN RELATION TO THE EXERCISE ACTIVITIES. BY USING THE SERVICE AND/OR THE APP, YOU ACKNOWLEDGE AND AGREE THAT YOUR PARTICIPATION IN ANY OF THE EXERCISE ACTIVITIES IS ENTIRELY AT YOUR OWN RISK AND YOU SHALL HAVE NO RECOURSE WHATSOEVER AGAINST US OR OUR PARTNERS.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING ESPECIALLY PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE APP. WE ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE APP. WE ASSUME NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE APP, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THE APP, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO US, IF ANY, OR (B) USD 1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
YOU AND WE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT (WHEREVER THAY MAY BE IN THIS AGREEMENT) ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND WE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE USER TERMS OF SERVICE ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE APP AND SERVICES. THE APP DEVELOPER IS ALSO THE PARTY TO WHICH LIMITATIONS OF LIABILITY IN THIS SECTION 13 ARE APPLIED TO. The previously mentioned in this paragraph also applies to the App Developer.
With respect to any unauthorized, fraudulent transaction conducted using your User Account, absent any violation of these User Terms of Service by you, your right to reimbursement for any direct losses (i.e., losses not refunded by your Payment Instrument issuing entity) as set forth herein shall be your sole and exclusive right and remedy for any loss or damages incurred by you arising out of, in connection with, or relating to any fraudulent or unauthorized use of your User Account, and we may condition its payment of any fraud or unauthorized use reimbursement upon your releasing us and our business partners from any further claims with respect thereto.
An action or proceeding relating to any claim arising out of the Services or any App must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
California Consumer Rights Notice. Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at https://www.dca.ca.gov.
Users of the Services who are California residents and are under 18 years of age may request and obtain removal of user content they posted by emailing us at below presented email address. All requests must be labeled "California Removal Request" on the email subject line. All requests must provide a description of the user content you want removed and information reasonably sufficient to permit us to locate that user content. We do not accept California Removal Requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, and we may not be able to respond if you do not provide adequate information.
Note To New Jersey Consumers. If you are a consumer residing in New Jersey, the following provisions of these User Terms of Service do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, special, incidental, punitive, exemplary, or consequential damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code, And New Jersey Consumer Fraud Act); (b) the limitation on liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act And New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including, without limitation, negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey Law, Including, Without Limitation, The New Jersey Products Liability Act); and (d) the New York governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
App Stores. To the extent permitted by applicable law, the following supplemental terms shall apply when accessing the App through specific devices:
Notice regarding Apple. By downloading the App from a device made by Apple, Inc. (“Apple”) or from Apple’s App Store, you specifically acknowledge and agree that:
- These User Terms of Service are between us and you; Apple is not a party to these User Terms of Service.
- The license granted to you hereunder is limited to a personal, limited, non-exclusive, non-transferable right to install the App on the Apple device(s) authorized by Apple that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Apple’s App Store Terms of Services.
- Apple is not responsible for the App or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.
- Apple is not responsible for addressing any claims by you or a third party relating to the App or your possession or use of the App, including without limitation: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the App or your possession and use of the App infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of such intellectual property infringement claim.
- You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Apple and its subsidiaries are third party beneficiaries of these User Terms of Service and upon your acceptance of the terms and conditions of these User Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof.
- We (and/or the App Developer, as may be the case) expressly authorize use of the App by multiple users through the Family Sharing or any similar functionality provided by Apple.
Google Play. By downloading the App from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”), you specifically acknowledge and agree that:
- to the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in these User Terms of Service, the Google Play Terms shall apply with respect to your use of the App that you download from Google Play, and
- you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by us or you (or any other user) under these User Terms of Service or the Google Play Terms.
- Dispute Resolution
- Arbitration and Class Action Waiver
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
Informal Process First. You agree that in the event of any dispute between you and Trainer, you will first contact Trainer and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Trainer’s services and/or products, including the Services, or relating in any way to the communications between you and Trainer or any other user of the App (including use of Services), will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Trainer. However, this arbitration agreement does not (a) govern any Claim by Trainer for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these User Terms of Service or (b) bar you from making use of applicable small claims court procedures in appropriate cases. You may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use the App by following the procedure described below.
You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Trainer are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these User Terms of Service.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to our contact details presented at the end of this document.
The arbitration will be administered by the American Arbitration Association (AAA) under its rules including the AAA's Supplementary Procedures for Consumer-Related Disputes.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the Class Action waiver section below.
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Trainer each waive any right to a jury trial.
- Miscellaneous Provisions
This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties.
This Agreement shall be governed by the laws of the State of Delaware without reference to principles of conflicts of laws.
No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
Except as provided in Section 13 above, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
In no event shall we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control.
The provisions of this Agreement are entered into for our benefit, and we shall have the right to enforce such provisions of this Agreement, including the disputes resolution clause, directly against you to protect our interests.
We reserve the right to change or add to these User Terms of Service at any time. When we do so, we shall provide notice through our App by posting the updated User Terms of Service or by notifying you via email address provided in your User Account. You agree that if you do not agree to any such amendment, you shall immediately terminate this agreement. Your failure to do so, or continued use of the App or Services, shall constitute agreement to User Terms of Service as so amended.
In the event of a conflict between this Agreement and any other we agreement or policy provided to you, directly or indirectly, this Agreement shall prevail on the subject matter of this Agreement.
You can reach us at firstname.lastname@example.org