Fit52 | CREATIVE LABS TERMS OF SERVICE
Last modified October 9, 2020
1. BINDING CONTRACTUAL TERMS
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE IN SECTIONS 19 AND 20. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN SECTIONS 19 AND 20, YOU AND WE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND WE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
AUTOMATIC RENEWAL NOTICE: THESE TERMS CONTAIN INFORMATION RELATED TO AUTOMATIC RENEWALS OF SUBSCRIPTIONS TO THE FIT52 IOS AND ANDROID MOBILE APPLICATIONS. UNLESS YOU CANCEL YOUR SUBSCRIPTION WITHIN 24 HOURS BEFORE THE END OF THE CURRENT SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW.
These Terms include a disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by you, a class action waiver, and a notice of automatic subscription renewal in Sections 1, 12, 13, 14, 16, 17, 18, 19 and 20, and in the Apple required terms at the end. Please review those sections (and all of the other terms) carefully.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
2. ABILITY TO ENTER INTO THESE TERMS
To enter into these Terms, you must have reached the legal age of majority in your jurisdiction of residence or be at least 18 years old and possess legal parental or guardian consent to enter into these Terms and access and use the Service, and be fully able and competent to enter into, abide by and comply with these Terms. We do not knowingly provide access to our Service to anyone under the legal age of majority unless such user is at least 18 years of age and has parental or legal guardian consent. It is your responsibility to ensure that you are legally eligible to enter into these Terms under any laws applicable to you in your jurisdiction of residence or otherwise.
4. THE SERVICE
You agree to not use the Service for commercial purposes or for any use not expressly permitted by these Terms, without the prior written consent of Creative Labs. Commercial use that is prohibited includes, but is not limited to, the use or sale of access to the Service or related technologies and services.
All material available on the Service and all material and services provided by or through Creative Labs, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel,” layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, “Content”) are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws. Subject to your compliance with these Terms, we grant you a limited, revocable right to access and make personal use of the Service as our customer.
This paragraph does not apply to User Content (as defined below); however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Creative Labs related to the Service or Creative Labs or its business (“Feedback”) are and will be Creative Labs’ exclusive property without any compensation or other consideration payable to you by Creative Labs, and you do so of your own free will and volition. Creative Labs may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Creative Labs may decide into the Service, its software, documentation, business or other products or services, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Creative Labs in any Feedback and, as applicable, waive any moral rights.
5. USER ACCOUNTS
In order to interact with certain features of the Service, you will need to create a Fit52 account (“Account”). You agree that you may only create one Account and no more than one Account may be created using the same email address, Apple ID, Google account and/or Facebook account. When creating your Account, you must ensure that all information you enter is complete and accurate. Your right to access and use the Service using your Account is personal to you and is not transferable by you to any other person or entity. You must not disclose your Account login information to any third party. You are solely responsible for all activity on your Account, so please keep your password protected. You are not allowed to use anyone else’s Account. If you feel that the security of your Account has been breached or accessed without your permission, you must notify us immediately.
6. ACCOUNT TERMINATION POLICY
Creative Labs reserves the right, at any time and without cost, charge or liability, to terminate your Account at its sole discretion for any reason, including, but not limited to, a failure to comply with these Terms. If you establish multiple Accounts, all non-permitted Accounts may be closed by Creative Labs without notice to you. Creative Labs also reserves the right to deny access to anyone, including, but not limited to, those users who use proxy servers and/or IP addresses residing in certain geographical areas outside of the United Kingdom, Europe, Oceania, Canada and the United States. Creative Labs reserves the right to terminate any portion of the Service at any time, for any reason, with or without notice.
7. SUBMISSION OF USER CONTENT
Creative Labs will use User Content you upload in connection with providing the Service to you, and as you may otherwise explicitly authorize, including for marketing purposes. As between you and Creative Labs, you own all of your User Content. You agree that by uploading, or otherwise providing, any User Content on or through the Service, you grant to Creative Labs a perpetual, worldwide, non-exclusive, royalty-free license, with the right to sublicense, to use, reproduce, process and display all or any portion of such User Content, both in connection with providing the Service, and as you otherwise explicitly authorize. This license includes the right to host, index, cache, repost to social media platforms, or otherwise format your User Content to provide the Service, or with your permission, to promote the Service.
You represent and warrant that you own your User Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Creative Labs or Creative Labs’ use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that Creative Labs is not responsible for any violations of any third-party intellectual property rights in any User Content that you submit to Creative Labs. You agree to pay all royalties, fees and any other monies owing to any person by reason of the User Content uploaded, displayed or otherwise provided by you to the Service.
9. ACCEPTABLE USE AND CONDUCT
You agree that you will not publish or make available any User Content that, or use the Service in a manner that:
(a) infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
(b) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(d) is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
(e) constitutes bullying or harassment or encourages others to conduct personal harm or suicide;
(f) is harmful to minors in any way;
(g) is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as determined by Creative Labs in its sole discretion;
(h) impersonates a Creative Labs employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Service or a portion thereof without proper authorization;
(i) interferes or attempts to interfere with the proper working of the Service or prevents others from using the Service, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Service, or that otherwise negatively affects other persons’ ability to use the Service;
(j) uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor, scrape, or copy the Service or the content contained therein;
(k) facilitates the unlawful distribution of copyrighted materials;
(l) except as expressly permitted by Creative Labs, licenses, sublicenses, rents or leases the Service to third parties, or uses the Service for third-party training, commercial time-sharing or service bureau use;
(m) includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of content transmitted through the Service to users;
(n) constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
(o) stalks or otherwise harasses anyone on the Service or with information obtained from the Service;
(p) collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
(q) requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Service for the purposes of automating logins to the Service ;
(r) attempts to gain unauthorized access to the computer systems of Creative Labs or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Service;
(s) posts adult or pornographic User Content;
(t) decompiles or reverse engineers or attempts to access the source code of the software underlying the Service or any other Creative Labs technology;
(u) copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Service;
(v) accesses the Service for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Service;
(w) accesses the Service for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
(x) accesses the Service to upload any User Content or computer code for the purposes of: (i) causing a breach or override of security to the Service; (ii) interfering with the proper working, functionality or performance of the Service; or (iii) preventing others from accessing or using the Service.
10. COPYRIGHT AND TRADEMARK COMPLIANCE AND COMPLAINTS
If you are an intellectual property owner or an agent thereof and believe that either (1) any Content or User Content on the Service or (2) any material or activity contained on an online location to which Creative Labs has referred or linked users, infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):
a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works on the Service;
c) identification of the 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 us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);
d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f) 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.
Notification pursuant to the DMCA should be submitted to:
Creative Labs Management Inc.
142 – 757 West Hastings Street,
Vancouver, BC V6C 1A1
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Emails or notices sent to Creative Labs without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
11. TRADEMARKS AND CELEBRITY MATERIAL
a) Creative Labs responds to complaints that Content or User Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.
b) Please be aware that celebrities, and sometimes others, may have a “right of publicity,” which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although you may be a fan, you risk infringing celebrity rights if you use a celebrity name or likeness on the Service and you do not have the celebrity’s permission.
c) If you are a trademark owner or a celebrity and you believe your rights have been infringed on the Service, please submit a notification of infringement to our agent listed in the section entitled “Copyright and Trademark Compliance and Complaints” above.
d) To submit a notification, you must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.
e) When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office or other national trademark office. Please also provide the location on the Service where you believe the infringement is occurring.
12. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, YOUR INFORMATION, AND THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CREATIVE LABS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS NOT A VALID SUBSTITUTION FOR PROFESSIONAL FITNESS TRAINING. ALL CONTENT IS PROVIDED PURELY FOR ENTERTAINMENT PURPOSES AND SHOULD NEVER BE USED TO MAKE MEDICAL OR OTHER PERSONAL DECISIONS. IF YOU ARE STRUGGLING WITH YOUR PHYSICAL HEALTH, WE STRONGLY RECOMMEND THAT YOU SEEK THE LICENSED ADVICE OF A QUALIFIED MEDICAL PROFESSIONAL. IN ADDITION TO OTHER LIMITATIONS AND DISCLAIMERS HEREIN, CREATIVE LABS AND ITS THIRD PARTY PROVIDERS, INCLUDING WITHOUT LIMITATION FIT IN 52, LLC AND ITS LICENSORS, EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS IN CONNECTION WITH THE CONTENT PROVIDED VIA OUR SERVICE. We are not a medical organization and we do not and cannot give or purport to give you any medical advice or assistance in whatever form. Nothing ON THE SERVICE or anything associated with IT should be taken or understood as medical advice or assistance nor should it be interpreted in substitution for any medical advice or assistance or used or referred to instead of seeking appropriate medical advice or assistance from qualified practitioners for your particular circumstances and needs. You are solely responsible for evaluating and assessing your own health and wellbeing and whether, in all the circumstances, you should access and use the service. We encourage you to seek appropriate medical advice or assistance before embarking on any use of the service.
You agree that we, any of our affiliates, service providers and/or suppliers, and FIT IN 52, LLC AND ITS LICENSORS DO NOT warrant or make any representation about the SERVICE, content OR ANY OTHER products, services or offers, and specifically do not make any representation OR WARRANTY about the risks, results, reasonableness or accuracy or otherwise of THE SERVICE OR CONTENT, and your use THEREOF is at your sole risk.
CREATIVE LABS AND FIT IN 52, LLC AND ITS LICENSORS DISCLAIM ANY WARRANTY THAT THE SERVICE, THIRD-PARTY SOFTWARE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CREATIVE LABS AND FIT IN 52, LLC AND ITS LICENSORS MAKE NO GUARANTEE REGARDING THE COMPATIBILITY OF YOUR SOFTWARE, HARDWARE OR CONTENT WITH THE SERVICE. FROM TIME TO TIME CREATIVE LABS MAY TAKE DOWN OR OTHERWISE SUSPEND ACCESS OR USE OF THE SERVICE FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CREATIVE LABS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
The Service is offered and controlled by Creative Labs from its facilities in Canada and the United States. Creative Labs makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS, AND SO THE DISCLAIMERS IN THESE TERMS MIGHT NOT APPLY TO YOU.
13. THIRD-PARTY CONTENT
The inclusion of any third-party content on the Service does not imply Creative Labs’ affiliation with the provider of such third-party content or its endorsement of such third-party content. Because we do not control third-party content, you agree that Creative Labs is not responsible for any such third-party content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such third-party content. Creative Labs reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any third-party content (including on any social networking website) in whole or part at any time for any reason with or without notice and with no liability of any kind. You are solely responsible (and assume all associated liability and risk) for determining whether or not such third-party content is appropriate or acceptable to you.
Access and use of third-party sites, including the information, material, products and services on third-party sites or available through third party sites, is solely at your own risk.
BY USING THE SERVICE, YOU EXPRESSLY RELEASE CREATIVE LABS, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, LICENSORS, LICENSEES, AND SUPPLIERS, AND FIT IN 52, LLC AND ITS LICENSORS, OFFICERS, AND AGENTS (COLLECTIVELY, THE “CREATIVE LABS PARTIES”), APPLE AND GOOGLE FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE OR ONLINE SERVICE AND FROM ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH ANY THIRD PARTY. Accordingly, we encourage you to be aware when you leave the Service and to read the terms and conditions of use for each other website or online service that you visit.
14. PURCHASE PRICING
Certain aspects of the Service can be used by all registered Account holders for free. However, select premium features (“Paid Services”) are only accessible with a subscription, which can be purchased on a monthly, quarterly or annual basis. Paid Services, which include access to all workout content for all subscription periods, can be purchased for the prices listed here. If you do not cancel your subscription within 24 hours before the end of the current subscription period, your subscription will automatically renew. Furthermore, if you try the Service for 14 days for free, and you do not cancel your free trial within 24 hours before the end of the free trial period, your free trial will convert to a paid subscription for the duration you selected. Any unused portion of a free trial will be forfeited if you purchase a subscription. Creative Labs may also include the option of one-time in-app purchases for certain Paid Services. Pricing and availability of Paid Services are subject to change at any time prior to a purchase being completed. Creative Labs may choose to temporarily change pricing for promotional events or new products or services, and such changes shall be immediately effective when Creative Labs posts the temporary pricing change to the Service. You acknowledge that you are responsible for any taxes and fees of any nature, including sales taxes, associated with the purchase of Paid Services, as well as complying with any and all applicable tax laws, including tax reporting and payment.
Paid Services may be purchased via various payment methods, for which you acknowledge and agree that you must comply with any relevant terms and conditions or other legal agreement which may govern your use thereof. All prices displayed in app are in the currency local to your app store, unless otherwise indicated. You are solely responsible for paying for any Paid Services that you order, including all additional fees, such as taxes, associated with the order. Unless otherwise specified at the time of order, all payments, including additional fees, are due immediately at the time of the order. Creative Labs may add or remove any payment methods at its sole discretion and without notice to you. Apple’s App Store or Google Play (as applicable) will use the preferred payment method selected in your Account, and may charge you through the payment methods available in your country, including any taxes or other additional fees associated with the order. If your chosen payment method is expired, invalid or otherwise unable to be charged, you agree that, if available, Creative Labs may use the secondary payment method indicated in your Account. If all payment methods are expired, invalid or otherwise unable to be charged, then all Paid Services on your Account may be removed without notice to you. All payments made through iTunes are controlled and managed by Apple and all payments made through Google Play are controlled and managed by Google. Payments will be charged to your iTunes account or Google Play account at confirmation of purchase.
Before selecting a Paid Service on the Service, carefully review the Service and all policies and terms. All sales are final, unless otherwise indicated by Creative Labs at the time of order. No returns, replacements or refunds are permitted. The only exceptions considered are technical issues preventing the fulfillment of Paid Services. If a refund, return or replacement is granted, the affected transaction may be reversed and you acknowledge that you may no longer be able to access the Paid Service purchased through that transaction. You will not receive a refund if any or all of the Service is temporarily unavailable, and we reserve the right to issue refunds or credits, at our sole discretion, without any obligation to continue issuing same or similar refunds if one has been granted in the past. Certain legislation and consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to your Paid Services that cannot be excluded, restricted, or modified.
You agree that you will not attempt to circumvent any refund prohibitions with regard to Paid Services on the Service. You will not dispute or otherwise seek a “chargeback” from the company whose credit card you used on the Service. Should you do so, your subscription to the Service may be cancelled, and Creative Labs may, in its sole discretion, refuse to honor pending and future Paid Services made from all credit card accounts or online accounts on which such chargebacks have been made, and may prohibit all persons in whose name the credit card accounts exist, and any person who accesses any associated online account or credit card or who otherwise breaches this provision, from using the Service.
15. ACCOUNT CANCELLATION
You may cancel your Account at any time through the interface provided as part of the Service. Cancellation must be issued via such interface or via Creative Labs’ support addresses. Any cancellation request must be made via Apple Subscription or Google Play services at least 1 day prior to the end of the term of your then-current subscription for Paid Services. This is the only way to cancel your Account and you will not be provided with a refund, in whole or in part, of any pre-paid amount. Phone requests to cancel your Account will not be accepted.
You will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the then-current subscription period for Paid Services in which you canceled your Account. Creative Labs is under no obligation to store your User Content and may delete your Account and your User Content immediately upon cancellation or may keep your Account and your Content for up to 365 days following the last day of the month of cancellation.
16. SUBSCRIPTION CANCELLATION
Subscriptions will automatically renew unless canceled within 24 hours before the end of the current subscription period. Free trials will automatically convert to paid subscriptions unless canceled within 24 hours before the end of the free trial period. You may cancel your subscription at any time through your iTunes account or Google Play account (as applicable) settings. You can obtain additional details about the cancellation by contacting us at email@example.com.
17. LIMITATION OF LIABILITY
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL CREATIVE LABS, ITS AFFILIATES, CONTRACTORS, LICENSORS, SERVICE PROVIDERS, EMPLOYEES OR AGENTS, OR FIT IN 52, LLC OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF CREATIVE LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS. CREATIVE LABS’ AND FIT IN 52, LLC’S AND ITS LICENSORS’ AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS UNDER THESE TERMS IS LIMITED TO THE LESSER OF: (A) $50.00 USD OR (B) THE TOTAL AMOUNTS YOU PAID TO CREATIVE LABS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE.
THE FOREGOING LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY SERVICES PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN CREATIVE LABS AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY THIRD PARTIES. YOU ALSO AGREE THAT CREATIVE LABS AND FIT IN 52, LLC AND ITS LICENSORS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICE. YOU AGREE THAT YOU BEAR ALL RISK AND YOU AGREE TO RELEASE THE CREATIVE LABS PARTIES, APPLE AND GOOGLE FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, NOW AND IN THE FUTURE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICE AND YOUR TRANSACTIONS WITH ADVERTISERS.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Any claims relating to use of the Service must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID.
THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE LIABILITY EXCLUSIONS AND LIMITATIONS IN THESE TERMS MIGHT NOT APPLY TO YOU, INCLUDING to the extent this liability cannot be excluded under the Consumer Rights Act 2015 (UK).
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CREATIVE LABS PARTIES, FROM AND AGAINST ANY THIRD-PARTY CLAIM, DEMAND, LOSS, DAMAGE, COST OR LIABILITY (INCLUDING, REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE, INCLUDING BUT NOT LIMITED TO IN RELATION TO: (A) YOUR USE, NON-USE OR MISUSE OF, OR CONNECTION TO THE SERVICE OR CONTENT; (B) YOUR BREACH OR ALLEGED BREACH OF THESE TERMS; AND (C) YOUR VIOLATION OF ANY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OF A THIRD PARTY. THE CREATIVE LABS PARTIES RESERVE THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY THE CREATIVE LABS PARTIES AND YOU AGREE TO COOPERATE WITH THE CREATIVE LAB PARTIES’ DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF CREATIVE LABS. CREATIVE LABS WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION OR PROCEEDING UPON BECOMING AWARE OF IT.
19. GOVERNING LAW, DISPUTE RESOLUTION AND WAIVERS
THIS SECTION 19 IS NOT APPLICABLE TO U.S. CONSUMERS
These Terms are governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflict of law provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded in their entirety from these Terms.
Where permitted by applicable law, all claims and disputes, including all statutory claims and disputes, arising out of or relating to these Terms or your use of the Service will be solely and exclusively referred to, and finally resolved by, binding arbitration pursuant to the Domestic Commercial Arbitration Rules of Procedure (if you are a Canadian customer) or the International Commercial Arbitration Rules of Procedure if you are a customer located outside of Canada) of the British Columbia International Commercial Arbitration Centre then in force (respectively, the “Arbitration Rules”). A single arbitrator shall be appointed by agreement of the Parties, or, in default of agreement, such arbitrator will be appointed in accordance with the Arbitration Rules. The arbitration will be held in Vancouver, British Columbia and will be conducted in the English language. The arbitrator shall have jurisdiction to award costs of the arbitration, including attorney’s fees and disbursements and arbitrator fees and expenses. Any award and the determination of such arbitrator will be final and binding upon you and Creative Labs. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the party or parties against whom an award may be issued and each of you and Creative Labs agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as contemplated in these Terms. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought. Where arbitration is prohibited by applicable laws, you and Creative Labs hereby agree to the exclusive jurisdiction of the courts of the province of British Columbia, Canada with respect to any disputes relating to these Terms or your use of the Service.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE: (A) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (B) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
20. DISPUTE RESOLUTION, MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR U.S. CONSUMERS
THIS SECTION 20 IS APPLICABLE ONLY TO U.S. CONSUMERS
If you are a U.S. consumer, these Terms are governed by the laws of the State of Delaware and the federal laws of the United States applicable therein, without regard to conflict of law provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded in their entirety from these Terms.
All claims and disputes, including all statutory claims and disputes, arising out of or relating to these Terms or your use of the Service will be finally resolved by binding arbitration on an individual basis, except that you and Creative Labs are not required to arbitrate any dispute in which either party seeks equitable relief for alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. This means that, except for the equitable relief described in the previous sentence, neither Creative Labs nor you will sue in court before a judge or jury, unless you opt out of arbitration as provided below. Creative Labs and you are also agreeing that no dispute subject to the terms of this Section 20 will be resolved as a class. Instead, one neutral arbitrator will decide the dispute, and the arbitrator’s decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. The arbitrator may award declaratory or injunctive relief only for the individual claims between Creative Labs and you.
The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with its rules of practice and procedure (the “Rules”), except to the extent they conflict with these Terms. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The AAA Consumer Arbitration Rules are available online at www.adr.org or by calling AAA at 1-800-778-7879. Any claims or disputes involving less than US $10,000 may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the amount sought is US $10,000 or more, the right to an in-person oral hearing will be determined by the Rules. The arbitrator will be bound to follow applicable federal and state laws and regulations in deciding all issues and in rendering any award. Creative Labs and you will be entitled to invoke the rules of discovery applicable to state court proceedings. The arbitration proceedings will be conclusive and not appealable, and any party to any award rendered in any arbitration proceeding will be entitled to have judgment entered on that award. Any relief awarded in arbitration cannot affect other end users and will be kept confidential. The number of arbitrators shall be one, selected in accordance with the Rules, and the language of the arbitration will be English. Unless non-appearance arbitration is elected, the arbitration will be held in New York, New York, provided that, if you notify us in writing within thirty (30) days after the initial notice of arbitration is delivered by a party, you may elect to have the arbitration be held in Chicago, Illinois or Los Angeles, California. If non-appearance arbitration is elected, the arbitration will be conducted by phone, online, written submissions, or a combination of the three, at the election of the party initiating arbitration, and the arbitration will not involve a personal appearance by parties or witnesses unless the parties mutually agree otherwise. If you demand arbitration first, you will pay the claimant’s initial arbitration filing fees or case management fees required by the Rules up to $125 USD, and Creative Labs will pay any additional initial filing fee or case management fee. Notwithstanding any contrary provisions in the Rules but subject to the previous sentence, each party shall bear its own costs and expenses of the arbitration and one-half (1/2) of the fees and costs for the arbitrator unless the arbitrator determines the fees and costs should be borne by one of the parties. The arbitrator may not award or assess punitive damages against either party.
CREATIVE LABS AND YOU AGREE THAT ANY PROCEEDINGS TO RESOLVE ANY DISPUTE, INCLUDING ARBITRATION AND LITIGATION IN COURT, WILL BE CONDUCTED INDIVIDUALLY ONLY. Neither Creative Labs nor you will seek to have any dispute heard as a class action, a class wide arbitration, a private attorney-general action, or any other proceeding in which either of Creative Labs or you act(s) or propose(s) to act as a representative for others. Creative Labs and you also agree that no arbitration or other proceeding will be combined with another arbitration or proceeding without the written consent of Creative Labs, you, and every other party to that arbitration or proceeding. Without the written consent of Creative Labs, the arbitrator may not consolidate or join more than one person or party’s claims and may not otherwise preside over any form of a consolidated, representative or class proceeding.
You may opt out of the arbitration and class actions waiver set forth above by sending a written notice of your decision to opt-out in accordance with this Section 20. If you do so, neither you nor Creative Labs can force the other to arbitrate. To opt out, you must notify Creative Labs in writing no later than thirty (30) days after first becoming subject to these Terms. Your notice must include your name and address, the name and the email address you used to set up your account for the Service, and an unequivocal statement that you want to opt out of this arbitration. Send your notice to: Creative Labs Management Inc., 142 – 757 West Hastings Street, Vancouver, BC V6C 1A1. In the event of a dispute between you and Creative Labs, to invoke your opt-out right, you must retain a copy of your opt-out notice, as well as proof of mailing of your opt-out notice within the prescribed period.
If you elect to opt out, each of you and Creative Labs irrevocably (i) consents to the exclusive jurisdiction and venue of the courts in the Province of British Columbia, Canada in connection with any matter arising out of this Agreement, (ii) waives any objection to such jurisdiction or venue, (iii) agrees not to commence any legal proceedings related hereto except in such courts, (iv) consents to and agrees to accept service of process to vest personal jurisdiction over it in any such courts and (v) waives any right to trial by jury in any action in connection with this Agreement.
ANY LEGAL ACTION BROUGHT BY YOU AGAINST CREATIVE LABS OR ANY OF THE CREATIVE LABS PARTIES MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE DATE ON WHICH SUCH LEGAL CLAIMS WOULD ORDINARILY ACCRUE UNDER THE APPLICABLE STATUTE OF LIMITATIONS OR SIMILAR TEMPORAL DEADLINE FOR COMMENCING A LEGAL ACTION.
This Section 20 may be amended from time to time in accordance with Section 1 of these Terms. If you did not opt out of mandatory arbitration as provided above, you may reject any change we make to this Section 20 by sending us notice within thirty (30) days after first becoming subject to the amended Terms. Send your notice rejecting changes to this Section 20 to: Creative Labs Management Inc., 142 – 757 West Hastings Street, Vancouver, BC V6C 1A1. In the event of a dispute between you and Creative Labs, to invoke your right to apply an earlier version of this Section 20, you must retain a copy of your rejection notice, as well as proof of mailing of your rejection notice during the period of time in which you intend to pursue any claim. Creative Labs reserves the right to make additional amendments to this Section 20. If you wish to reject additional changes to this Section 20, you must notify us in accordance with this Section 20 for each change in accordance with the terms hereof.
Notwithstanding Sections 19 and 20, Creative Labs may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that these Terms are specifically enforceable by Creative Labs through injunctive relief and other equitable remedies without proof of monetary damages.
These Terms shall constitute the complete and exclusive agreement between you and Creative Labs, and govern your use of the Service. These Terms replace and supersede any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by Creative Labs.
If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from these Terms and the other provisions shall remain in full force and effect.
You may not assign these Terms or any of your rights or obligations under these Terms without Creative Labs’ prior written consent. Creative Labs may assign these Terms or any of its rights and obligations under these Terms to any third party in its sole discretion. These Terms bind you and your heirs, legal representatives, executors and permitted assigns.
Software and the transmission of applicable technical data, if any, in connection with the Service may be subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from Canada, the United States and the country in which you reside.
The sections of ”Submission of User Content”, “Disclaimer of Warranties”, “Account Cancellation”, “Limitation of Liability”, “Indemnity”, “Governing Law, Dispute Resolution and Waivers”, “Dispute Resolution, Mandatory Arbitration and Class Action Waiver for U.S. Consumers” and “Miscellaneous” will survive any actual or purported termination or expiry of these Terms and continue in full force and effect.
Please feel free to contact us if you have any more questions about these Terms at firstname.lastname@example.org or using one of the other contact methods listed at fit52.com.
23. APPLE REQUIRED TERMS
1. Acknowledgement: Creative Labs and you acknowledge that these Terms are concluded between Creative Labs and you only, and not with Apple, and Creative Labs, not Apple, is solely responsible for the Service and the content thereof.
2. Scope of License: The license granted to you for the Service is limited to a non-transferable license to use the Service on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Maintenance and Support: As between Apple and Creative Labs, Creative Labs is solely responsible for providing maintenance and support services, if any, with respect to the Service, as specified in these Terms, or as required under applicable law. Creative Labs and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
4. Warranty: As between Apple and Creative Labs, Creative Labs is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the relevant App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Creative Labs’ sole responsibility.
5. Product Claims: Creative Labs and you acknowledge that Creative Labs, not Apple, is responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of that Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
6. Intellectual Property Rights: Creative Labs and you acknowledge that, in the event of any third-party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, to the extent a warranty of non-infringement is not validly disclaimed, Creative Labs, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Legal Compliance: You 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.
8. Developer Name and Address: Creative Labs may be contacted at 142 – 757 West Hastings Street, Vancouver, BC V6C 1A1 in connection with any questions, complaints or claims with respect to the Service. Users may also contact Creative Labs by email at email@example.com.
9. Third Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Service.
Third Party Beneficiary: Creative Labs and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
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