Terms of Use Agreement for Sworkit by Nexercise App, Inc

Introduction

Welcome to our platform. We appreciate your interest in our services. Please read this Terms of Use Agreement carefully, as it outlines your legal rights and obligations. By clicking the "I AGREE" button or otherwise using the Service (as defined below), you agree to be bound by this Terms of Use Agreement.

If you subscribe to the Service for a defined period (the "Initial Term"), this Agreement will automatically renew for additional periods of the same duration as the Initial Term at Nexercise's then-current rates for such Service, unless you decline to renew your subscription as outlined below.

2. Definitions

For clarity within this Agreement, the following terms are defined as follows:

"Agreement" refers to this Terms of Use Agreement.

“App(s)” refers to our mobile applications made available to you through Apple AppStore, Google Play, Android Marketplace or other mobile app stores;

“Nexercise” refers to one of the following: our company (the official name of which is “Nexercise, Inc.”); our Site; our Service (currently offered under the brands SworkitTM and NexTrackTM); or a combination of all or some of the foregoing, depending on the context in which the word “Nexercise” is used;

“Registered User” refers to a User who has registered for an account via a Service (“Account”) or has a valid account on a social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”).

“Service” or “Services” refers to the services that we provide, including our Apps and our Site; “Site” refers to any website controlled by us where this Agreement appears, including www.nexercise.com and www.sworkit.com;

“User” refers to users of our Services;

“You” (whether or not capitalized, and including variations such as “your,” etc.) refers to you, the person who is entering into this Agreement with Nexercise.

3. Overview of Services

Sworkit is a digital platform (accessible via mobile, web, and other formats) that assembles exercises in real-time into "workout playlists" tailored to various time constraints and environments. Sworkit integrates individual video exercises into targeted workouts of any length, accompanied by audio guidance. Sworkit may be delivered as a benefit through an employer, health plan, or other organization.

NexTrack is a mobile application that tracks physical activities without the need for additional hardware accessories (other than your mobile device). It motivates users through community leaderboards and offers rewards for achieving goals. The rewards include intrinsic incentives, such as points, levels, and badges, as well as extrinsic incentives, such as discounts and coupons provided by third-party providers. NexTrack also functions as a social support network and utilizes the accelerometer, gyroscope, and GPS functions of your mobile device to track and validate exercise activity.

Nexercise also offers other products and services designed to assist you in pursuing your fitness goals, including the ability to interact with certified personal trainers.

4. Eligibility

To use our Services, you must meet the following criteria:

· You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, Nexercise, and yourself. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.

· To make any purchases through our App, you must be the minimum age required to enter into a contract in the area in which you reside, and, in any event, you must not be under 18 years age.

· To download our Service, to install our Service, including our App, on any device, and/or to provide any information to us, you must be at least 13 years of age or participating in a "K12 Account" as defined in our Privacy Policy.

5. Health Advisory

We value your use of our App and your interest in exercise, but please proceed carefully. If you have any medical conditions, or if you plan to start an exercise program or participate in strenuous or unusual physical activities, you should consult your doctor first.

For specific Nexercise offerings, such as our “Rehabilitation and Care” workout collection, you must consult a licensed physician or physiotherapist regarding your underlying injuries before use. Even after consultation, immediately report any changes in your condition to your physician or physiotherapist so they can provide appropriate care.

For our pre- and post-natal workout offerings, you should obtain clearance from your doctor prior to participating. Pay close attention to how your body feels during and after these workouts, and cease participation if you experience any discomfort. Your safety is paramount.

6. License to Use

Subject to your compliance with this Agreement, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and/or use the Services on any device that you own or control, solely for your own personal, non-commercial use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.

You understand that the Site, Apps or Services may be updated periodically. As a result, we may require you to accept updates to the Site, Apps or the Services that you have installed on your mobile device. You acknowledge and agree that we may update the Site, Apps and/or the Services with or without notifying you. As a part of the Services, you may have access to materials, products and services that are hosted or provided by another party. You agree that it is impossible for Nexercise to monitor such materials and that you access these materials at your own risk.

In order to access certain features of the Services you may be required to become a Registered User. If you access the Services through a social networking service (“SNS”) as part of the functionality of the Services, you may link your Account with Third-Party Accounts, by either (i) providing your Third-Party Account login information to Nexercise through the Services; or (ii) allowing Nexercise to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Nexercise and/or grant Nexercise access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Nexercise to pay any fees or making Nexercise subject to any usage limitations imposed by such third-party service providers. By granting Nexercise access to any Third-Party Accounts, you understand that Nexercise shall have the right to access, make available and store (if applicable) certain of the Content (as defined below) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the or Services via your Account. Unless otherwise specified in this Agreement, all SNS Content shall be considered to be Your Content (as defined below) for all purposes of this Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Nexercise’s access to such Third-Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the App. PLEASE NOTE THAT YOUR RELATIONSHIPS WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Nexercise makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and Nexercise is not responsible for any SNS Content.

You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Nexercise immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.

You must provide all equipment and software necessary to connect to the Services, including, but not limited to, a mobile device that is suitable to connect with and use the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.

7. Rules of Use

Once you have signed up for Sworkit, NexTrack, or any other Nexercise Service, we have some additional rules. You must not:

· Make the Apps available to any third party or try to sell access to the Apps for money or anything else of value.

· Modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services.

· Access the Services in order to build a similar or competitive products or services.

· Use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services.

· Violate the laws of the United States, its states or any foreign political entity having jurisdiction over this Agreement, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.

· Post or send anything violent, threatening, pornographic, racist, hateful, or otherwise objectionable. What is “objectionable” is up to us.

· Infringe on anyone’s intellectual property rights (including privacy and publicity rights), defame anyone, impersonate anyone, or otherwise violate the rights of a third party.

· Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of our Services or any property, product or service of any of our Users.

· Share videos accessed through the subscription Service with other users that have not paid for that subscription Service.

· Do anything else that Nexercise believes could harm us or any third party. Nexercise, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Services terminates the licenses granted by Nexercise pursuant to this Agreement.

8. Paid Goods

We may offer third-party goods and services through our Services. Except with respect to our subscription Service, which provides you access to premium content and services, please note that all terms surrounding payment, order fulfillment, and refunds are covered by our third-party providers and not Nexercise, and are hereby incorporated into this Agreement by reference. Our subscription Service is a subscription fee-based Service, which gives you access to content and services, including our “Ask a Trainer” Service, where you can ask personal trainers questions about fitness and your specific fitness-related goals. All subscription Services provide access through the Site and the App. You can become a subscriber by purchasing a subscription to the Service from the Site or within the App. Please note that, once purchased, the sale is final and we will not provide a refund.

Fees for our periodic subscriptions are due in periodic installments (for example, if your subscription is monthly, fees are due monthly, that sort of thing). For each period of time that your monthly subscription is active, you acknowledge and agree that Nexercise is authorized to charge the same credit card or payment method as you used for the initial subscription fee in the same amount or in the amount of the then-current periodic subscription fee. The periodic renewal fees will continue to be billed to the same payment method you provided, automatically until cancelled. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fee to the payment method you provided. Refunds cannot be claimed for any partial subscription period.

Longer subscriptions (e.g., annual subscriptions) are paid for by an upfront one-off payment with automatic renewals. You acknowledge and agree that Nexercise is authorized to charge the payment method used for the initial subscription fee at the rate secured at the time of purchase. You must cancel your subscription before it renews in order to avoid billing of the renewal subscription fee to the payment method you provided. Refunds will not be issued for any partial subscription period.

You agree to notify Nexercise promptly of any changes to the payment method you provided while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you.

The fees quoted by Nexercise are net of any applicable sales tax. If any Service, or payment for any Service, under this Agreement is subject to sales tax in any jurisdiction and you have not remitted the applicable sales tax to Nexercise, you will be responsible for the payment of such sales tax and any related penalties or interest to the relevant tax authority and you will indemnify Nexercise for any liability or expense we may incur in connection with such sales tax. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or such evidence that you have paid all applicable taxes.

9. Content

You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the individual or entity from which such Content originated. This means that you, and not Nexercise, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and other Users of the Services, and not Nexercise, are similarly responsible for all Content they Make Available through the Services (“User Content”).

You acknowledge that Nexercise has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Nexercise reserves the right in its sole discretion to pre-screen, refuse to display or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to the foregoing. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. Without limiting the foregoing, Nexercise shall have the right to remove any Content that, as determined in Nexercise’s sole discretion, violates this Agreement or is otherwise objectionable.

Unless expressly agreed to by Nexercise in writing elsewhere, Nexercise has no obligation to store any of Your Content that you Make Available via the Services. Nexercise has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the Nexercise system may default to its most permissive setting. You agree that Nexercise retains the right to create reasonable limits on the use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described via the Services and as otherwise determined by Nexercise in its sole discretion.

Whenever you submit Your Content to our Services or any content relating to our Service on any public areas of any social media services, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use, distribute, sell, creative derivative works from, publish, and otherwise make use of Your Content that you submit to us. You warrant to us that you have the right to grant us these rights in and to Your Content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims regarding the same.

Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Services, including, but not limited to, the virtual goods or currency appearing or originating in any Nexercise game, whether earned in a game or purchased from Nexercise, or any other attributes associated with an Account or stored via the Services.

Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Services, you hereby expressly permit Nexercise to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Nexercise.

You agree that submission of any ideas, suggestions, documents, and/or proposals to Nexercise through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Nexercise has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nexercise a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works from, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services or any other products or services offered by Nexercise or any affiliate.

10. Third-Party Services.

The Services may contain links to third-party platforms (“Third-Party Platforms”) and advertisements for third parties (collectively, “Third-Party Platforms & Ads”). When you click on a link to a Third-Party Platform or Ad, we will not warn you that you have left our Service and you acknowledge and agree that you will then be subject to the terms and conditions (including privacy policies) of another platform or destination. Such Third-Party Platforms are not under the control of Nexercise. Nexercise is not responsible for any Third-Party Platforms & Ads. Nexercise provides these Third-Party Platforms & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Platforms & Ads, or their products or services. You use all links in Third-Party Platforms & Ads at your own risk. When you leave our Services, this Agreement no longer governs. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Platform, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

You acknowledge and agree that the availability of the Services is dependent on the third-party platform from which you access the Services, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that this Agreement is between you and Nexercise and not with the App Store. Nexercise, not the App Store, is solely responsible for the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto. In order to use the Services, you must have Internet connectivity and you agree to pay all fees associated with such connectivity. You also agree to pay all fees (if any) charged by the App Store in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App and the Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it to the extent the rights of the operator of any App Store are affected hereby.

11. Our Name

“Nexercise,” “Sworkit” and “NexTrack” are trademarks used by us, Nexercise, Inc., to uniquely identify our Site, Apps, Service, and business. You agree not to use these marks anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our Services or their design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any activity that violates the provisions of this paragraph, including starting your own app that competes with our Services.

12. Revocation of Consent

We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, or surrender it to us, even if it would cause a loss to you.

13. DMCA Notice

If you believe that your copyright has been infringed, please provide Nexercise with a written notice containing the following information:

Please send this notice to our Copyright Agent at contact@sworkit.com.

While U.S. law does not provide a similar procedure for trademark infringement, we recommend providing similar information for any claims related to trademarks.

14. Defamation

Nexercise does not tolerate defamatory content on our Site. Under United States law, specifically Section 230 of the Communications Decency Act, we are generally not liable for defamatory statements made by third parties on our Site. However, Nexercise expressly prohibits defamation under this Agreement and may, at our discretion, take appropriate action against any User who engages in defamatory behavior. If you believe defamatory content has been posted by another User, please promptly notify us at contact@sworkit.com.

15. Representations & Warranties; Limits on Liability

PLEASE READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO YOU. NEXERCISE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF OUR SERVICES. YOU AGREE TO RELEASE US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICES, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE FOR THE MINIMUM AMOUNT OF DAMAGES REQUIRED BY LAW, IF ANY SUCH MINIMUM EXISTS.

YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARD YOU. WE ARE NOT RESPONSIBLE FOR ANY FAILURE OF A THIRD PARTY, INCLUDING ANY COUPON PARTNERS, TO FULFILL THEIR COMMITMENTS TO YOU.

WE ARE NOT LIABLE FOR ANY FAILURES OR DISRUPTIONS IN THE SERVICES, INCLUDING UNTIMELY DELIVERY OR ANY INTERRUPTIONS, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR SITE WHICH PREVENT ACCESS TO OUR SITE TEMPORARILY OR PERMANENTLY.

NEXERCISE IS NOT A MEDICAL SERVICE AND DOES NOT OFFER MEDICAL ADVICE. THE SERVICES ARE NOT INTENDED FOR MEDICAL DIAGNOSIS, DRUG PRESCRIPTION, OR MEDICAL TREATMENT ADVICE. YOU SHOULD DISREGARD ANY ADVICE RECEIVED THROUGH THE SERVICES THAT MAY BE CONSTRUED AS MEDICAL GUIDANCE. WE DO NOT ENDORSE SPECIFIC PRODUCTS, PROCEDURES, OPINIONS, OR INFORMATION MENTIONED OR DESCRIBED THROUGH THE SERVICES. RELIANCE ON CONTENT OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. PERSONAL TRAINERS YOU MAY INTERACT WITH THROUGH THE SERVICES ARE NOT OUR EMPLOYEES, AGENTS, OR REPRESENTATIVES. NEXERCISE ASSUMES NO RESPONSIBILITY FOR THE ACTIONS, OMISSIONS, ACTIVITIES, PRODUCTS, OR SERVICES OF ANY PERSONAL TRAINER AND DOES NOT GUARANTEE ANY RESULTS IN CONNECTION WITH THE SERVICES.

THE CONTENT SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTHCARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, BEFORE TAKING ANY DRUG, CHANGING YOUR DIET, OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION ACCESSED THROUGH THE SITE, APPS, OR SERVICES. CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.

THE PROVISION OF OUR SERVICES IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT.

For jurisdictions that do not allow limitations on liability: If your jurisdiction has provisions specific to waiver or liability that conflict with the above, then our liability is limited to the maximum extent permitted by law. Specifically, we do not disclaim liability for: (a) death or personal injury caused by our negligence or that of our officers, employees, or agents; (b) fraudulent misrepresentation; or (c) any liability which cannot lawfully be excluded either now or in the future.

IN NO EVENT SHALL NEXERCISE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, APPS, THE SERVICES OR CONTENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFITS, MEDICAL OR LEGAL CLAIMS OR AWARDS, PAIN AND SUFFERING, OR MEDICAL BILLS, WHETHER OR NOT NEXERCISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES DAMAGES FOR PERSONAL INJURY, BODILY INJURY, EMOTIONAL DISTRESS, OR WRONGFUL DEATH ARISING FROM COMMUNICATIONS OR INTERACTIONS WITH PERSONAL TRAINERS OR USERS FACILITATED VIA THE SERVICES, REGARDLESS OF THE LEGAL THEORY APPLIED.

UNDER NO CIRCUMSTANCES WILL NEXERCISE BE LIABLE FOR MORE THAN THE AMOUNT RECEIVED BY NEXERCISE FROM YOU IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM. IF NO AMOUNTS WERE PAID TO NEXERCISE, OUR SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEXERCISE AND YOU.

CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. IF YOU ARE A RESIDENT OF ANOTHER JURISDICTION WITH SIMILAR LAWS, YOU HEREBY WAIVE ANY SUCH PROVISION THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.

16. Indemnity

You agree to defend, indemnify and hold harmless Nexercise, its related entities, affiliates, and its and their directors, officers, managers, employees, agents, and licensors, from and against any losses, expenses, damages, costs, and claims by you or any third party which may arise from or relate to this Agreement or the provision of our Services to you, including any damages caused by your use of our Services, your interaction with any other users of the Service or personal trainers facilitated via the Service, or acceptance of the offers contained therein. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.

17. Governing Law and Jurisdiction

This Agreement shall be governed by the laws of the State of Delaware. The offer and acceptance of this Agreement are deemed to have occurred in the State of Delaware.

You agree that any dispute arising from or relating to this Agreement will be heard exclusively in the lowest civil court in the State of Delaware ("Small Claims Court").

If a dispute involves multiple claims and at least one claim is eligible for Small Claims Court, you agree to bring all claims within Small Claims Court.

If your potential recovery exceeds the monetary jurisdiction of the Small Claims Court, you agree to waive any claim to amounts exceeding that jurisdictional limit and still bring your claim within Small Claims Court.

If you would otherwise be entitled to remedies available only in higher courts, such as injunctive relief, you agree to waive those remedies and proceed with your dispute in Small Claims Court.

If you bring a dispute in any manner contrary to this section, Nexercise may move to have it dismissed, and you will be responsible for Nexercise's reasonable attorneys' fees, court costs, and related expenses.

You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for reimbursing the successful party’s reasonable attorneys' fees, court costs, and expenses.

18. Force Majeure

Nexercise shall not be responsible or liable for any failure or delay in performance under this Agreement if such failure or delay is caused by circumstances beyond our reasonable control, including but not limited to acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruptions, communication disruptions, infrastructure failures or shortages, material shortages, or any other event beyond our control.

19. Severability

In the event that any provision of this Agreement is found to be unlawful, conflicting with another provision of this Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

20. Non-Waiver

Nexercise reserves all rights afforded under this Agreement and applicable laws. Our non-enforcement of any specific provision or provisions of this Agreement or applicable law shall not be interpreted as a waiver of our right to enforce such provision(s) under similar or different circumstances at any future time.

21. Term and Termination

We may terminate your Account and/or access to our Site, Apps, and Service at our discretion without prior explanation, though we strive to provide timely notice where possible. Nexercise shall not be liable for any losses related to any termination or cancellation or resulting from the actions of other Users. After the Initial Term of a subscription Service, you may terminate your subscription by not renewing it prior to the next renewal period.

22. Assignment of Rights

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.

23. Amendments

We may amend this Agreement periodically. When amendments occur, Nexercise will post updated terms prominently. You agree to be bound by these amendments through your continued use of our Services. If you disagree with any changes, you must discontinue use of our Services immediately.

24. Downloading Apps from iTunes. The following applies to any App accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):

(a) You acknowledge and agree that (i) this Agreement is concluded between you and Nexercise only, and not Apple, and (ii) Nexercise, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Nexercise and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Nexercise.

(d) You and Nexercise acknowledge that, as between Nexercise and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e) You and Nexercise acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Nexercise and Apple, Nexercise, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

(f) You and Nexercise acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary hereof.

(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

25. Downloading Apps from Google Play. The following applies to any Google Play Sourced Application accessed through or downloaded from Google Play (“Google Play Sourced Application”):

(a) You acknowledge and agree that (i) the Terms of Use are concluded between you and Nexercise only, and not Google, and (ii) Nexercise, not Google, is solely responsible for the Google Play Sourced Application and content thereof. Your use of the Google Play Sourced Application must comply with the Google Play Agreement of Service.

(b) Google is only a provider of Google Play where you obtained the Google Play Sourced Application.

(c) Nexercise, and not Google, is solely responsible for its Google Play Sourced Application;

(d) Google has no obligation or liability to you with respect to Nexercise’s Google Play Sourced Application or these Terms of Use; and

(e) You acknowledge and agree that Google is a third-party beneficiary to these Terms of Use as it relates to Nexercise’s Google Play Sourced Application.

26. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

Last Modified: April 7, 2025
Revision Note: Adjusted language for formality; minimal tone edits applied.