2. Words Mean Things
“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. Nexercise? What’s a Nexercise? For that matter, what does Sworkit mean?
Sworkit is a digital platform (mobile, web, and future formats) that assembles exercises in real time, into “workout playlists” that can fit most time and environmental constraints. Sworkit merges individual video exercises into a targeted workout of any length by matching metadata with audio guidance.
NexTrack is a mobile app that tracks your physical activities without any hardware accessory (other than your phone), motivates you using community leaderboards, and offers rewards for successfully accomplishing your goals. The rewards are intrinsic, in the form of points, levels, and badges; and extrinsic, in the form of discounts and coupons on real products provided by third-party providers. Nexercise is also a fun game and social support network. Finally, NexTrack tracks and validates exercise activity using the accelerometer, gyroscope, and GPS functions of your mobile device. Together, Sworkit and NexTrack have the advantages of a high school gym teacher without the yelling or smelling of five-day-old B.O.
Nexercise also offers other products and services that help you pursue your fitness goals, including the ability to interact with certified personal trainers.
We’re a fun company, but we do have to have a few standards. If you wanna use the awesomeness that is our Services:
· 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.
We appreciate that you like our App and you’re enthusiastic about exercising, but please don’t overdo it! 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. Smartphones are great, but they’re not that great as defibrillators or asthma inhalers, so please make safety your #1 priority!
For some Nexercise offerings, such as our “Rehabilitation and Care” workout collection, the videos cannot and should not be used without first consulting a licensed physician or physiotherapist about your underlying injuries. Even after this consultation, please tell your physician or physiotherapist of any changes you might notice in the injured or affected area so that they may continue treat those injuries appropriately.
For our pre- and post-natal workout offerings, we suggest you get the OK from your doctor prior to participating in any of the videos, make sure that you pay close attention to how your body feels during and after those workouts and stop participating in the videos upon any sort of discomfort. Safety first!
6. License to Bill
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 and the Services are evolving. 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 (Ha! You thought it’d be anarchy, didn’t you?). 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, alien planets, 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. Or a foreign planet – intergalactic laws can sometimes be tricky.
· 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. Basically, don’t do anything online to someone that would get you a black eye if you did it in real life.
· 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. · Run around the pool.
· Share videos accessed through the subscription Service with other users that have not paid for that subscription Service. No free riders!
· 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. So, if your order placed with one of these third parties doesn’t get to you in time for your big weekly Sworkit fan club meeting, please don’t yell at us because it wasn’t our fault. 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. Rewards and Referrals
Through the Services, Nexercise may offer rewards to its Users like points, levels, and badges. We know you’re saying, “Wow, that’s awesome and it’s a great motivator, and I totally want to use NexTrack now.” But wait! There’s more!
Not only do we give you cool achievement rewards that you can show off, but we also give you opportunities to refer Sworkit to friends, sometimes in exchange for a Sworkit credit or discount. You can refer a friend for no incentive or can choose from two different referral types: (i) “refer a friend, get $10” or (ii) “refer a friend, get 20% discount for referral” here. You can also choose our affiliate campaign, in which you can refer a friend, receive a 10% discount for the referral and receive a payment for 20% of your friend’s subscription rate. We use a third party, Rewardful, to manage our referral/affiliate program offerings.
If Nexercise suspects that you (or any referred friend you refer to Sworkit) has used or attempted to use the referral/affiliate program offerings in a fraudulent or abusive manner or in violation of this Agreement, we reserve the right to suspend or terminate your Account.
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.
Nexercise allows supportive comments from other Users (Wooooh, you can do it!), but we need to know that you wrote those comments and not Litigious Industries Incorporated or something because we don’t need to be spending our time responding to copyright complaints. 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.
11. 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.
12. 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. The exception to this paragraph is that you may put our trademark on the Moon so that it’s visible from Earth. Not only would we be really impressed, but we’d make you our Emperor of Public Relations.
13. 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. Basically, don’t write “Sworkit” on your car if it’s a really cool car, because if we find out about it we’ll probably just take it from you.
14. Plagiarism’s Bad!
Once upon a time, elves gave us a magical shield to protect us from evil copyright lawyers who might try to sue us just ‘cause someone else posted something without permission on our Site: That shield was called the Digital Millennium Copyright Act (which, if you’re too cool for school, you just refer to as the “DMCA”). If you believe that your copyright has been infringed, stop moping and send us a DMCA notice which contains:
- Your name.
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed.
- The location on our Site of the infringing copy.
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent at email@example.com (a signature made of electrons instead of ink is fine since you’re e-mailing it). And please, don’t e-mail us just to say “What’chu talkin’ ‘bout?”
Although U.S. law does not provide for a similar procedure for trademark infringement (apparently the elves who invented the DMCA liked copyright owners more), we recommend that you send us similar information to that above in regards to any allegation of trademark infringement.
15. Things Mean People Say
We know this may come as a surprise, but sometimes people on the Internet can act way tougher than they are in person and maybe even say some defamatory things when they’re tossing out insults. Similar to the DMCA provisions above, United States law—specifically Section 230 of the Communications Decency Act—creates a defense for us for the actions of third parties in regards to any defamatory content posted on our Site. Although we are not liable for defamatory words posted on our Site by our Users even if given notice, we do prohibit defamation under this Agreement and we may, if we believe the situation warrants it, take action against the offending User, including but not limited to telling their mom on them. Please notify us at firstname.lastname@example.org if any of our Users has posted anything that you believe is defamatory.
16. Representations & Warranties; Limits on Our Liability
YES, OUR LAWYERS KNOW HOW A CAPS LOCK KEY WORKS, BUT THIS SECTION IS REALLY IMPORTANT BECAUSE IT LIMITS OUR LIABILITY TO YOU SO WE DECIDED TO YELL. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF OUR SERVICES. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICES, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY 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, RUDE NOISES, FUNNY FACES, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU. WE ARE NOT RESPONSIBLE FOR ANY FAILURE OF A THIRD PARTY, INCLUDING ANY COUPON PARTNERS, TO FULFILL THEIR COMMITMENTS TO YOU. YELLING AT US ABOUT THEM WILL ONLY MAKE US SAD.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OURS OR OF A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, 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 OR DRUG PRESCRIPTION OR ADVICE CONCERNING WHICH DRUGS OR TREATMENT MAY BE APPROPRIATE FOR YOU, AND YOU SHOULD DISREGARD ANY SUCH ADVICE IF DELIVERED THROUGH THE SERVICES. WE DO NOT ENDORSE SPECIFIC PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED OR DESCRIBED THROUGH THE SERVICES. IF YOU RELY ON ANY CONTENT OBTAINED BY YOU OR THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK. ANY CONTENT OR INFORMATION ACCESSED OR RECEIVED THROUGH THE SERVICES, INCLUDING FROM ANY PERSONAL TRAINERS, ARE NOT INTENDED TO BE MEDICAL ADVICE. THE PERSONAL TRAINERS YOU MAY INTERACT WITH THROUGH THE SERVICES ARE NOT OUR EMPLOYEES, AGENTS OR REPRESENTATIVES. NEXERCISE ASSUMES NO RESPONSIBILITY FOR ANY ACT, OMISSION, ACTIVITY, PRODUCT OR SERVICE OF ANY PERSONAL TRAINER. NEXERCISE 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 HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR 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 TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the maximum extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by our negligence or that of any of our officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
YOU UNDERSTAND AND AGREE THAT 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, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, MEDICAL, LEGAL OR MALPRACTICE DAMAGE CLAIMS OR AWARDS, PAIN AND SUFFERING, OR MEDICAL BILLS, WHETHER OR NOT NEXERCISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL INJURY, BODILY INJURY, EMOTIONAL DISTRESS, OR WRONGFUL DEATH, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH ANY PERSONAL TRAINERS FACILITATED VIA THE SERVICES OR OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, INCLUDING ANY OF THE FOREGOING RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SITE, THE APPS OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING ANY PERSONAL TRAINER, ON THE SITE, APPS OR THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SITE, APPS OR THE SERVICES, WHETHER BASED ON BREACH OF WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL NEXERCISE BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY NEXERCISE AS A RESULT OF YOUR USE OF THE SITE, APPS AND THE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO YOUR CLAIM. IF YOU HAVE NOT PAID NEXERCISE ANY AMOUNTS, NEXERCISE’S 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, WHO ARE TOTAL HIPPIES, 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 THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASES, THEN (YOU MAY OR MAY NOT BE A HIPPIE AND) THE FOLLOWING APPLIES: YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOU HEREBY DO THE WAVE AT A BASEBALL GAME.
17. Indemnity (Don’t break it if you don’t want to buy it)
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.
18. Throwing Down the Gauntlet
This Agreement shall be governed by the laws in force in 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 in the lowest civil court in the State of Delaware (“Small Claims Court”). Uncivil courts are too rude so we’re going to stick with the civil ones.
If a dispute involves multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court.
If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court. In other words, if the small claims limit is $10,000 and you think we owe you $10,001, you’ll have to bite the bullet and not go after that extra $1. You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
19. Force Majeure (Fancy French word for “Not our bad”)
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, happy thoughts, labor shortages (including lawful and unlawful strikes), embargoes, zombie attacks, postal disruption, communication disruption, evil dolphins from outer space, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
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.
Nexercise reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law, including but not limited to the Geneva Convention and the Bylaws of the International Society of Lawn Bowling. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future. So, don’t think we’ll let you get away with something just because you happen to know that we didn’t go after Bob for the same thing.
22. Term and Termination (Hasta la vista, baby)
We may terminate your Account and/or access to our Site, Apps and Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Under no circumstances will we be liable for any losses related to any such termination or cancellation or any actions of other Users. As set forth above, after the Initial Term of any subscription Service, you may terminate your subscription to the Service by not renewing your subscription prior to the commencement of the next renewal period.
23. 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.
We may amend this Agreement from time to time. When we amend this Agreement, we will post the changes, so even though it’s boring, you have to keep reading this Agreement each time you use our Services since you agree that you will—well, agree—to the changes through your continued use of our Services. If you do not agree to the changes, you must cease using our Services immediately.
25. 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.
26. 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”):
(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;
27. 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: October 15, 2019