Total Gym Fitness Terms and Conditions
Last Updated: May 7, 2024
Your use of the websites, mobile app, and other services on which these terms reside (collectively, the "Platform"), including the features and services made available through this Platform, are subject to these terms of use (“Terms”). Please read these Terms carefully before using this Platform. The Platform is owned or controlled by Total Gym Fitness, LLC ("Company", “Us”, “us”, “We”, or “we”). This Platform is intended for users age 18 or older. If you are under 18 years of age, you may not use this Platform.
BY ACCESSING THIS PLATFORM IN ANY WAY, INCLUDING, WITHOUT LIMITATION, BROWSING THIS PLATFORM, USING ANY INFORMATION, AND/OR SUBMITTING INFORMATION TO COMPANY, YOU AGREE TO AND ARE BOUND BY THE TERMS, CONDITIONS, POLICIES AND NOTICES CONTAINED ON THIS PAGE, INCLUDING, BUT NOT LIMITED TO, CONDUCTING TRANSACTIONS ELECTRONICALLY, DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, BINDING ARBITRATION, AND A CHOICE OF NEW YORK LAW.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE IN SECTION 10. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND COMPANY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
From time to time we may update the Platform and these Terms. Your use of the Platform after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. In addition, when using particular services, your transactions or services may be subject to additional terms and conditions applicable to such services which may be posted from time to time.
Company may, in its sole discretion, and at any time, discontinue the Platform or any part thereof, with or without notice, or may prevent your use of the Platform with or without notice to you. You agree that you do not have any rights in the Platform and that Company will have no liability to you if the Platform is discontinued or your ability to access the Platform or any content you may have submitted through the Platform is terminated. All restrictions, rights granted by you, and all disclaimers and limitations of liability will survive any termination.
1. Company Content
Content on the Platform that is provided by Company or its licensors, including all materials that are included in or are otherwise a part of the Platform (including past, present and future versions of the Platform), including, without limitation: graphics; layout; text; instructions; photographs, images; audio; videos; designs; trademarks, trade dress, logos, product names or packaging, and slogans; any and all copyrightable material (including source and object code), digitally downloadable files, and the compilation of all of the foregoing ("Company Content") is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.
Your use of the Company Content is limited to your personal use only, and You agree not to download, display or use any Company Content for commercial use (a) in any publications, (b) in public performances, (c) on websites other than this Platform for any other commercial purpose, (d) in connection with products or services that are not those of Company, and/or (e) in any other manner that is likely to cause confusion among consumers, that dilutes the strength of Company's or its licensor's intellectual property, or that otherwise infringes Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Company Content or third party content that appears on the Platform.
2. Use of the Platform and Posting Policy
The following requirements apply to your use of the Platform, including any submission, data, feedback, or other materials provided, submitted, posted, transmitted, or displayed by you in connection with the Platform (“User Content”):
you will not use any electronic communication feature of the Platform for any purpose that is unlawful, tortious, abusive, intrusive on another's privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful, invasive of the privacy of another person, abusive, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by Company;
you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights;
you will not collect, store, or post any content that:
contains personal information about other users or any individual;
violates the privacy/publicity of any other individual or entity;
contains anything that you are under a contractual obligation to keep private or confidential;
contains any images, words, sounds, video, or other content that is subject to intellectual property rights for which you do not have the right or license to use in the manner contemplated on the Platform;
contains any commercial or corporate advertising (including, without limitation, corporate logos, brand names, and slogans), recognizable branded products, or commercial artwork;
suggests, depicts, or describes any inappropriate, unlawful, or dangerous behavior or use of Company’s or any other products or services;
contains or describes any harmful or illegal activity or content or in any way violate any federal, state, or local laws, rules, or regulations;
creates or implies any association between Company and any individual or entity or his, her, or its products or services;
is false, fraudulent, deceptive, misleading, defamatory, slanderous, libelous (including trade libel), disparaging, unlawfully harassing, threatening, profane, obscene, pornographic, hateful, indecent, inappropriate, abusive, or injurious to any other party;
in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using the Platform, or which may expose Company, the Platform or its users to any harm or liability of any type;
you will not use the Platform, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
you will not upload, post, email, or otherwise transmit any advertising or promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation or unauthorized communication;
you will not impersonate any person, entity, or organization, including without limitation, the personnel of Company, or falsely state or otherwise misrepresent an affiliation with another person or organization, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Platform;
you will not upload, post, email, or otherwise transmit any material that contains viruses, malicious code, or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of the Platform, any computer software or hardware, or telecommunications equipment;
you will not use any data mining, crawlers, spiders, robots or similar data gathering, scraping or extraction methods in connection with the Platform;
you will not use the Platform, or any content or information available on or through the Platform for any unauthorized purpose;
you will not attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by the Platform;
you will not harvest or collect personal information about any other individual who uses the Platform;
you will not interfere with or attempt to interfere with the proper working of the Platform, disrupt our website or any networks connected to the Platform, or bypass any measures we may use to prevent or restrict access to the Platform;
you will not incorporate the Platform or any portion thereof into any other program or product. In such case, we reserve the right to refuse service, terminate accounts or limit access to the Platform in our sole discretion;
you will not use automated scripts to collect information from or otherwise interact with the Platform;
you will not use or attempt to use another’s account, service or system without authorization from Company, or create a false identity on the Platform;
you will not use the Platform in a manner that may create a conflict of interest or undermine the purposes of the Platform, such as trading reviews with other users or writing or soliciting fake reviews.
By displaying, publishing, or otherwise submitting any User Content on or through the Platform, you hereby grant to Company a non-exclusive, sub-licensable, worldwide, fully-transferrable, fully-paid, irrevocable, perpetual, royalty free license to use, modify, publicly perform, publicly display, reproduce, adapt, reformat, publish, broadcast, translate, create derivative works from, transmit, and distribute such User Content in any and all media or technology now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Content, edit and revise any User Content (without notice), as well as the right to sublicense User Content to third parties. You continue to retain all ownership rights in your User Content, and you continue to have the right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own all content submitted, displayed, published or posted by you on the Platform and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. You further represent that all information provided by you through this Platform is true and accurate. Company reserves the right to remove any User Content you provide, in its sole discretion, without any notice to you.
3. DMCA Notice and Procedure for Copyright Infringement Claims
Total Gym Fitness is committed to complying with U.S. copyright law and to respond to claims of copyright infringement. Total Gym Fitness will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c) (“DMCA”).
If you are an intellectual property rights holder and believe your rights have been infringed, please read the following: Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to a Service Provider’s Designated Agent. Notification must be submitted to the following Designated Agent for this Platform in the manner described below:
By Mail: Attn: Legal
Total Gym Fitness, LLC, 110 Phoenixville Pike, Suite 400, Malvern, PA 19355
By Email: legal@totalgymdirect.com
Phone: 1-800-501-4621
For your complaint to be valid under the DMCA, you must provide all of the following information when providing notice of the claimed copyright infringement:
A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work claimed to have been infringed;
Identification of the material that is claimed to be infringing or to be the subject of the infringing activity, and that is to be removed or access to which is to be disabled, as well as information reasonably sufficient to permit Total Gym Fitness to locate the material;
Information reasonably sufficient to permit Total Gym Fitness to contact the copyright owner, such as an address, telephone number, and, if available, an electronic mail address;
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 law; and
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 copyright owner.
For more details on the information required for valid notification, see 17 U.S.C. 512(c)(3).
You should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorney’s fees.
4. User Accounts/Registrations
Certain areas of the Platform and certain services require registration or otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Platform.
If the Platform or any service requires you to create an account or otherwise submit information, you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you may be asked to enter your name and valid e-mail address and choose a sufficiently strong password. It is your responsibility to select a secure password, and to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify Us immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Platform or any service. Company is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. If you suspect your login credentials have been compromised, please notify us immediately. Company is not responsible for any delay in shutting down your account after you have reported a breach of security to us.
5. Suspension, Termination, Cancellation
Company reserves the right, at any time, in Company’s sole and exclusive discretion, to amend, modify, suspend, or terminate the Platform, or any part thereof, and/or your use of or access to them, with or without notice. Company shall have no liability to you or any other person or entity for any modification, suspension, or termination, or any loss of related information.
Company may also, at its option and in its sole discretion and with or without notice: (a) suspend, restrict, or terminate your access to any or all of the Platform, and/or (b) deactivate or cancel your User Account, if: (i) we are so required by a facially valid subpoena, court order or binding order of any government authority; (ii) we reasonably suspect you of using the Platform in connection with any Prohibited Uses (as defined below); (iii) your use of the Platform is subject to any pending litigation, investigation, or government proceeding and/or we, in our sole discretion, perceive a heightened risk of legal or regulatory non-compliance associated with your activity; (iv) any of our service partners are unable to support your use thereof; (v) you take any action that Company deems in its sole discretion as circumventing Company controls; (vi) we stop offering all or part of the Platform or services offered through the Platform; or (vii) you breach these Terms.
6. Representations, Limitations of Liability and Indemnity
Company makes no representations about the reliability of the features of this Platform, the Company Content or any other Platform feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems or use of the Platform will be at your own risk. Company makes no representations regarding the amount of time that any Company Content will be preserved. Company makes no representation or warranties that any material, images, applications or files obtained from or through the Platform are free from computer viruses or other faults or defects. It is your responsibility to take customary precautions against computer viruses and/or concerning inaccuracies, typographical errors or other defects on the Platform or applications or material available on or through Platform. You agree to use this Platform, applications and functions at your own risk.
Company does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company (including its personnel and owners) without the prior review and written approval of Company.
THE PLATFORM AND PLATFORM UPDATES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES, ARE MADE WITH RESPECT TO THIS PLATFORM OR ANY INFORMATION OR SOFTWARE THEREIN. THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY SPECIFICALLY DISCLAIMS SUCH WARRANTIES. BY ACCESSING OR USING THE PLATFORM YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE PLATFORM.
UNDER NO CIRCUMSTANCES WILL THE COMPANY ENTITIES (AS DEFINED BELOW) BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE PLATFORM OR PLATFORM UPDATES; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE PLATFORM OR PLATFORM UPDATES; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY ENTITIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE PLATFORM; OR (F) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE).
IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY ENTITIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE PLATFORM OR PLATFORM UPDATES DURING THE PRECEDING YEAR.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY ENTITIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY ENTITIES. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS UNDER THIS PARAGRAPH MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF COMPANY’S NEGLIGENT, FRAUDULENT, RECKLESS ACTS OR INTENTIONAL MISCONDUCT.
ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE PLATFORM ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE PLATFORM IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
You agree to indemnify and hold harmless from and against any damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of these Terms, or any violations thereof by your dependents or any claims arising from the use of User Content you submitted, posted, or otherwise provided to Company or this Platform.
You (and any third party on whose behalf you use the Platform) agree to indemnify, defend, and hold harmless Company, its parents, subsidiaries, officers, employees, and contractors and each of their respective officers, employees and agents (collectively, “Company Entities”) from any claims, liabilities, damages, losses, costs, and/or expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with the following (whether resulting from your use of the Platform or those conducted on your behalf): (i) your access to or use of the Platform; (ii) your breach or alleged breach of these Terms; (iii) your User Content and the use of User Content by Company Entities; or (vi) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right. You agree that the Company Entities will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify, defend, and hold harmless any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Company Entities in connection therewith. You will cooperate as fully required by Company in the defense of any claim. The Company Entities reserve the right to assume exclusive control of its defense in any matter subject to your indemnification, which shall not excuse your obligation to indemnify the Company Entities. You shall not settle any claim without the prior written consent of Company.
7. Third Party Websites
This Platform may hyperlink to sites not maintained by or related to Company. Hyperlinks are provided as a service to users and are not sponsored by or affiliated with the Platform or Company, and Company makes no representations or warranties about the content, completeness, or accuracy of those third-party sites. Information you submit at a third-party site accessible from the Platform is subject to that site's terms and conditions and privacy policy, and Company has no control over how your information is collected, used, or otherwise handled. The inclusion of any link to third-party sites or services does not necessarily imply Company’s endorsement of or affiliation with that third party. You acknowledge and agree that Company has no responsibility or liability for any such third-party sites or services.
8. Binding Arbitration
Except to the extent pre-empted by federal or other applicable state law, the Terms shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to any conflict of law provisions thereof. Users agree that all claims, disputes or controversies shall be resolved by final and binding arbitration in the County of Chester, Commonwealth of Pennsylvania. The tribunal will consist of one arbitrator. The prevailing party shall be entitled to an award of its reasonable attorneys’ fees and actual costs incurred in such action. The arbitrator shall be bound to apply the Terms of Use and the arbitrator’s decision will be final, binding, and enforceable in a court of competent jurisdiction. You may opt out of the arbitration provision contained in this agreement. You acknowledge and understand that this opt-out provision is only effective in the event you notify Company in writing within 30 calendar days from the date of first use of the Site.
9. Communications
You acknowledge and agree that your use of the Platform may involve you providing an “electronic signature” indicating your desire to use the Platform. Your “electronic signature” indicates your acceptance of this Agreement, and your consent to receive communications about this Agreement electronically. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You may opt out of receiving promotional emails that you have previously opted-in to at any time by following the instructions to unsubscribe, as provided therein.
10. No Third Party Rights
Unless expressly stated in these Terms to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Company, and our successors and assigns. Nothing in these Terms is intended to relieve or discharge the obligation or liability of any third persons to you and Company and our successors and assigns, nor shall any provision give any third parties any right of subrogation or action over against you, Company, and our successors and assigns.
11. Mobile Service, Internet and Service Fees
The use of the Platform may require use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You are required to send and receive, at your cost, electronic communications related to the Platform, including without limitation, administrative messages, service announcements, diagnostic data reports, and Platform Updates, from Company, your mobile carrier or third-party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Platform. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Platform, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the Platform.
The Platform may not work with all devices or all mobile carriers. Company makes no representations that the Platform will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Platform, or other third-party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
12. Mobile App Terms
Company may make available for download certain Platform updates or upgrades to the Platform to update, enhance or further develop the Platform (“Platform Updates”, included in the definition of “Platform”). The license granted herein allows you to download and use the Platform Updates to update the Platform on any device that you own or control. These Terms do not allow you to update devices that you do not own or control, and you may not make the Platform Updates available over a network where it could be used by multiple devices or multiple computers at the same time. You may not make any copies of the Platform Updates, unless such copy is authorized in writing by Company.
Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the Platform, you may not copy, decompile, reverse engineer, disassemble, adapt, translate, modify, or create derivative works of the Platform, Platform Updates, any content included therein, or any part thereof or attempt to determine any source code, algorithms, methods or techniques embodied by the Platform, Platform Updates, or any derivative works thereof. Any attempt to do so is a violation of the rights of Company and its licensors of the Platform and Platform Updates. If you breach this restriction, you may be subject to prosecution and damages. By storing content on your device, you are making a digital copy. In some jurisdictions, it is unlawful to make digital copies without prior permission from the rights holder. The Platform and Platform Updates may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce.
Company may, at its discretion, automatically download Platform Updates to your device. You agree to accept these Platform Updates, and to pay for any costs associated with receiving them. The Platform and Platform Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Platform and Platform Updates. These laws include restrictions on destinations, end users and end use.
For Apple iOS Users: You, the end-user of any mobile application provided by Company, acknowledge that the Terms are entered into by and between Company and you and not with Apple, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of these Terms and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce these Terms. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). These Terms incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of these Terms, the Platform is considered the “Licensed Application” as defined in the LAEULA and Company is considered the “Application Provider” as defined in the LAEULA. If any of these Terms conflict with the terms of the LAEULA, the terms of these Terms shall control.
By downloading the Platform from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”), you specifically acknowledge and agree that to the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of the Platform that you download from Google Play. You hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Company or you (or any other user) under these Terms or the Google Play Terms.
13. Miscellaneous
Both you and Company acknowledge and agree that no partnership is formed and neither of you nor Company has the power or the authority to obligate or bind the other.
These Terms will be governed by and construed in accordance with the internal laws of Pennsylvania without regard to conflicts of laws principles. By using this Platform, you hereby agree that any and all disputes regarding these Terms and/or the Platform not subject to the arbitration provision set forth above will be subject to the federal and state courts located in the State of Pennsylvania. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS PLATFORM AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
On certain areas of our Platform and through certain configurations, you may be given the ability to provide us with personally identifiable information. You agree that Company may collect and use technical and usage data and related information, including but not limited to technical information about your device, date and time of Platform access, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Platform. You grant Company the permission to use this information to improve its products or to provide services or technologies to you. Please read our Privacy Policy for more information about our information collection and use practices.
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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that you will not use the Application for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The failure of Company to comply with these Terms because of an act of God, epidemic, outbreak, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of these Terms.
Company’s failure to exercise or enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision in that or any other instance. We may assign these Terms at any time without notice to you. You may not assign to anyone else and any attempt by you to assign shall be void. If you do not comply with these Terms, and we do not act right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions.
These Terms constitute a binding agreement between you, your heirs, successors, affiliates, and representatives and Company, and is accepted by you upon your use of the Platform or your account. These Terms constitute the entire agreement between you and Company regarding the use of the Platform and your account. By using the Platform you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.