END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Effective Date: March 3rd, 2017
Last Updated Date: March 3rd, 2017
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
• the Service is licensed, not sold, to you, and you may use the Service only as set forth in this EULA;
• you use the service at your sole risk, and you should consult with a physician or other health care professional before commencing use of the Service;
• the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
• we provide the App to you on an “as is” basis without warranties of any kind and Fitivity’s liability to you is limited;
• disputes arising between you and Fitivity will be resolved by binding arbitration. BY ACCEPTING THIS EULA, AS PROVIDED IN GREATER DETAIL IN SECTION11 BELOW, YOU AND FITIVITY.
• ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION;
• if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” below; and
• if you Post (defined in Section 6.a below) any Objectionable Content (defined in Section 6.g below) on the Service, then we may – but have no obligation to – take any remedial action that we, in our sole discretion, deem necessary and/or appropriate under the circumstances, such as, without limitation, suspending or terminating your Account (defined in Section 3.a below), removing all of your User Content (defined in Section 6.a below) from the Service and/or reporting you to law enforcement authorities, either directly or indirectly.
1. General Terms and Conditions.
a. Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice; provided that we will endeavor to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing, and otherwise using the Service. The terms of this EULA will govern any updates FITIVITY
provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.a, no revisions to this EULA will apply to any dispute between you and Fitivity that arose prior to the effective date of such revision.
c. Jurisdictional Issues. The Service is controlled and operated by Fitivity from its offices in the State of California. Fitivity makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
d. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY FITIVITY. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
2. The Service.
a. Description. The Service provides you with the opportunity to take workout classes (each, a “Class”) and receiving coaching from trainers solely for your personal use. Classes are available for a variety of skill levels, for a variety of activities, and for varying durations, all to fit your particular needs. Not all classes will be available in perpetuity and classes are subject to change at any time with or without notice and without any liability to you.
b. Mobile Services. The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be in accordance with this EULA.
a. Log-In Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download the App and register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Fitivity immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Fitivity will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Fitivity of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites (defined in Section 8 below).
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as Fitivity requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Fitivity, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Fitivity may terminate your Account immediately without notice to you and without any liability to you or any third party.
4. Subscriptions and Payment.
a. Subscriptions. To enjoy the full benefits of the Service, including, without limitation, to use a coached workout, you must purchase a subscription to the Service. If you purchase a subscription to the Service, then the following terms apply:
b. Automatically Renewable Subscriptions. BY PURCHASING A MONTHLY OR ANNUAL SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE MONTHLY OR ANNUAL PERIODS UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION.
c. Cancellation. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME, AFTER WHICH FITIVITY WILL NOT RENEW YOUR SUBSCRIPTION. PLEASE CONTACT SUPPORT@GETFITIVITY.COM TO DISPUTE A CHARGE, CANCEL YOUR SUBSCRIPTION, OR REQUEST A REFUND.
d. Recurring Charges. YOU AUTHORIZE FITIVITY TO CHARGE THE PAYMENT METHOD THAT OUR PAYMENT PROCESSOR HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT MONTHLY OR ANNUAL SUBSCRIPTION PRICE PLUS ANY APPLICABLE TAXES. WE WILL PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION USING THE SAME BILLING CYCLE AS YOUR CURRENT SUBSCRIPTION. IN OTHER WORDS, IF WE PROCESS YOUR PAYMENT FOR YOUR CURRENT SUBSCRIPTION ON THE 20TH OF EACH MONTH, THEN WE WILL CONTINUE TO PROCESS YOUR PAYMENT ON THAT DAY FOR ANY RENEWAL SUBSCRIPTION. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
5. Intellectual Property Rights.
a. License. The Service is licensed, not sold, to you for use only under the terms of this Agreement. Fitivity reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with this Agreement, Fitivity hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your personal, non-commercial use.
b. Content. Except for User Content, the content that Fitivity provides to end users on or through the Service, including without limitation, any Class (including the programming of such Class), text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Fitivity or its third party licensors (collectively, the “Fitivity Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this Agreement or permitted by the Service’s intended functionalities. You may not modify or use any materials obtained from or available through the Service unless you have obtained the applicable copyright owner’s prior express written authorization. Fitivity owns all design rights, databases, and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and all related goodwill.
c. Marks. Fitivity trademarks, service marks, and logos (the “Fitivity Trademarks”) used and displayed on the Service are Fitivity’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Fitivity Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Fitivity or the applicable third-party, Fitivity’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from the Service without Fitivity’s prior express written consent. You may not remove any Trademarks identifying the ownership or origin of any Fitivity Content. All goodwill generated from the use of any Fitivity Trademark will inure solely to Fitivity’s benefit.
d. Restrictions. Fitivity hereby reserves all rights not expressly granted to you in this Section 5. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any Fitivity Content or Trademarks located or displayed therein.
6. User Content.
a. Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all Fitivity Content.
b. Screening User Content. Fitivity offers end users the ability to submit User Content to or transmit User Content through the Service. Fitivity does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. In addition, we have the right – but not the obligation – in our sole discretion to remove, disallow, block or delete any User Content (i) that we consider to violate this EULA or applicable law or otherwise constitute Objectionable Content (as defined below); or (ii) in response to complaints from other users or licensors of any Fitivity Content, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, Fitivity also has the right – but not the obligation – to take remedial action in connection with any Objectionable Content Posted on the Service as described more fully in Section 6.g below. Fitivity does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will Fitivity be liable in any way for any User Content.
c. Intellectual Property Rights. SUBJECT TO ANY THIRD PARTY RIGHTS IN ANY PREEXISTING CONTENT INCLUDED WITHIN YOUR USER CONTENT, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
d. Licenses to User Content. You hereby grant Fitivity an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Fitivity and the Service; (ii) displaying and sharing your User Content to other users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant Fitivity a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content. You must not Post any User Content on or through the Service or transmit to Fitivity any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to Fitivity will be considered non-confidential and non-proprietary, and treated as such by Fitivity, and may be used by Fitivity in accordance with this EULA without notice to you and without any liability to Fitivity.
e. You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of your Posting your User Content on the Service.
f. Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
g. Objectionable Content. You are not permitted to, and agree not to, Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or (ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide) (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. You also agree not to use the Service for illegal or unlawful purposes. If you encounter any Objectionable Content on the Service, then please immediately email Fitivity at SUPPORT@GETFITIVITY.COM or inform us through the functionality offered on the Service. You acknowledge and agree that Fitivity provides you with the ability to report Objectionable Content as a courtesy, and Fitivity has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, Fitivity in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the user’s Account, removing all of the user’s User Content Posted on the Service, and/or reporting the user to law enforcement or other authorities, either directly or indirectly.
h. No Liability. For the avoidance of doubt, Fitivity will not be liable for any unauthorized use of User Content by any end user.
7. Restrictions on Use of the Service.
a. In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not to attempt to):
i. make unauthorized copies or derivative works of any content made available on or through the Service, including, but not limited to, Fitivity Content;
ii. use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
iii. attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service;
iv. delete or alter any material Fitivity or any other person or entity Posts on the Service;
v. frame or link to any of the materials or information available on the Service;
vi. alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
vii. use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Fitivity or obtained from the Service;
viii. access, tamper with, or use non-public areas of the Service, Fitivity’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Fitivity’s providers;
ix. provide any false personal information to Fitivity;
x. create a false identity or impersonate another person or entity in any way;
xi. create a new account with Fitivity, without Fitivity’s express written consent, if Fitivity has previously disabled an account of yours;
xii. solicit, or attempt to solicit, personal information from other users of the Service;
xiii. restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users of the Service;
xiv. use the Service to send emails or other communications to persons who have requested that you not send them communications;
xv. use the Service, without Fitivity’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
xvi. gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
xvii. Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
xviii. interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies, or procedures of those networks or servers; or
xix. violate any applicable federal, state, or local laws or regulations or the terms of this EULA.
8. External Sites. The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). Fitivity does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Fitivity is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that Fitivity will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites.
9. Feedback. While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments, and suggestions. If you choose to contribute by sending Fitivity or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Fitivity, you agree that:
a. Fitivity has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Fitivity is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Fitivity perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. Fitivity respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
b. Repeat Infringer Policy. Fitivity’s intellectual property policy is to (i) remove or disable access to material that Fitivity believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Fitivity considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Fitivity has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Fitivity has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Fitivity’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Fitivity with the user alleged to have infringed a right you own or control, and you hereby consent to Fitivity making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Fitivity to locate the material;
iv. Information reasonably sufficient to permit Fitivity to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. Fitivity’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: Fitivity – 202 Bicknell Avenue, Santa Monica, CA 90405
e. Counter Notification. If you receive a notification from Fitivity that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Fitivity with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Fitivity’s Designated Agent through one of the methods identified in Section 10.d and include substantially the following information:
i. A physical or electronic signature of the subscriber;
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which Fitivity may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Fitivity in response to a Notification of Claimed Infringement, then Fitivity will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Fitivity will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Fitivity will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Fitivity’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Fitivity’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Fitivity] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Fitivity reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution.
a. General. In the interest of resolving disputes between you and Fitivity in the most expedient and cost effective manner, you and Fitivity agree that any dispute arising out of or in any way related to this EULA or your use of the App will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND FITIVITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 11.a above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Fitivity will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Fitivity. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Fitivity’s address for Notice is: Fitivity – 202 Bicknell Avenue, Santa Monica, CA, 90405, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Fitivity may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Fitivity must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Fitivity prior to selection of an arbitrator, Fitivity will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Fitivity in settlement of the dispute prior to the arbitrator’s award; or (3) $15,000.
e. Fees. If you commence arbitration in accordance with this EULA, Fitivity will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Fitivity for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. YOU AND FITIVITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Fitivity agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Fitivity makes any future change to this arbitration provision, other than a change to Fitivity’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Fitivity’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Fitivity.
h. Enforceability. If Section 11.f above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
12. Physical Activity Disclaimer. If you have any medical conditions or are thinking about starting an exercise program or engaging in strenuous or unusual physical activity, you should consult your doctor first. WITHOUT LIMITATION OF ANY OTHER TERMS IN THIS EULA, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE APP IS INTENDED TO AND/OR DOES DIAGNOSE, TREAT, CURE, OR PREVENT ANY ALLERGIES OR OTHER MEDICAL DISORDERS OR CONDITIONS, AND YOU HEREBY ACKNOWLEDGE THIS DISCLAIMER AND THAT WE ARE NOT ENGAGED IN PROVIDING YOU WITH A MEDICAL DEVICE, MEDICAL ADVICE AND/OR HEALTHCARE SERVICES BY PROVIDING YOU WITH ACCESS TO THE APP. You should consult with a licensed medical or fitness professional if you have any questions regarding your physical fitness routine. We are not responsible in any way for any health problems or injuries, including, without limitation, incapacity or death, which may result from or be related to your use of or inability to use the App.
13. Limitation of Liability and Disclaimer of Warranties. THE FOLLOWING TERMS IN THIS SECTION 13 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. FITIVITY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “FITIVITY PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT (INCLUDING CLASSES) AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS, TIMELINESS, OR RELIABILITY THEREOF. THE FITIVITY PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE FITIVITY PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON (INCLUDING GIFTS) ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO FITIVITY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON (INCLUDING CLASSES) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE FITIVITY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY FITIVITY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH FITIVITY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FITIVITY’S LIABILITY, AND THE LIABILITY OF ANY OTHER FITIVITY PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
14. Third Party Disputes.
a. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE FITIVITY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
b. The owners of any content licensed to Fitivity for use on the Service are intended beneficiaries of this EULA and shall have the right to enforce this EULA against you for any unauthorized use of their content in any court of competent jurisdiction. The provisions of Section 11 do not apply to any dispute between you and a third party licensor of content to Fitivity.
15. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Fitivity Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use, or misuse of Fitivity Content or the Service; or (c) your User Content. Fitivity will provide notice to you of any such claim, suit, or proceeding. Fitivity reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Fitivity believes that you are unwilling or incapable of defending Fitivity’s interests. In such case, you agree to cooperate with any reasonable requests assisting Fitivity’s defense of such matter at your expense.
16. Term and Termination of the EULA.
a. Term. As between you and Fitivity, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Fitivity.
b. Termination. You may terminate this EULA by sending written notification to Fitivity at email@example.com, deleting the App from your mobile device, and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you may be able to do so using the permitted functionalities of the App, but the removal or deletion of such User Content will not terminate this EULA. Fitivity reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA. Fitivity may further terminate this EULA for any other reason upon ten (10) days’ notice to you using the email address associated with your account credentials. Fitivity reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Sections 1, 3.b, 5.b, 5.c, 5.d, 6.d, 6.e, 6.f, 6.h, 7, 9 – 11, 15, 16.c, and 17 – 20 and all defined terms used therein will survive the termination of this EULA indefinitely.
18. Miscellaneous. This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in Los Angeles California. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Fitivity as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Fitivity other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Fitivity to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Fitivity unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Fitivity and you, this EULA constitutes the entire agreement between you and Fitivity with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Fitivity. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App and any Fitivity Content from your device prior to such disposition. Fitivity may assign this EULA, including all its rights hereunder, without restriction.
19. Contact Us. If you would like to contact us in connection with your use of the Service, then please refer to the contact information below: by mail at Fitivity – 202 Bicknell Avenue, Santa Monica, CA, and by email at firstname.lastname@example.org.
20. Open Source Software. The App contains certain open source software. Each item of open source software is subject to its own applicable license terms.
NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Fitivity only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Fitivity provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.