END USER LICENSE AGREEMENT -WECOUNT Coaching Application
This End User License Agreement(“Agreement")applies to the smartphone application known as the WECOUNTTM Coaching App ("App") provided by
WECOUNT Fitness, LLC ("Owner").
Brief Description of the App
The WECOUNTTM Coaching App,receives data from the WECOUNT's onboard electronics and sensors, to allow users to track workout data, history, and
progress. This data can then be shared via social media and with the global WECOUNT community.
Acceptance of Terms and Conditions -----------------------------------------3
Owner's License to You --------------------------------------------------------4
Electronic Signatures -----------------------------------------------------------4
In-App Purchases ---------------------------------------------------------------4
Carrier Charges -----------------------------------------------------------------4
Use of WECOUNT Fitness Services ----------------------------------------------5
Security of Data Transmission and Storage -----------------------------------6
Notice to EU Individuals -------------------------------------------------------7
GENERAL TERMS AND CONDITIONS ----------------------------------------8
When you open an account to use or access certain portions of the App or the Services, you must provide complete and accurate information as requested on the registration form. You will also be asked to provide a username and password. If you choose to register,you agree to:(a) supply the information requested in the registration process, (b) ensure that all the information you supply to us is accurate, and (c)update your personal information. You are entirely responsible for the maintaining the confidentiality of your password. You may not use a third party's account, username or password at any time. You agree to notify the Owner immediately of any unauthorized use of your account, username or password. The Owner shall not be liable for any losses you incur as a result of someone else's use of your account or password, either with or without your knowledge.You may be held liable for any losses incurred by the Owner, our affiliates, officers, directors, employees, consultants, agents and representatives due to someone else's use of your account or password. In connection with the use of certain products or Services, you may be asked to provide personal information in a questionnaire, application, form or similar document or service. This information will be protected pursuant to our Privacy and Information Security Policy. In addition,you grant the Owner a worldwide, royalty-free, nonexclusive, and fully sublicensable license to use, distribute, reproduce, modify, publish and translate this personal information solely for the purpose of enabling your use of the applicable service. You may revoke this license and terminate the Owner's rights at any time by removing your personal information from the applicable service. If you are a resident of California, you should also read the California Consumer Privacy Act Notice which is hereby incorporated into this Agreement.
Acceptance of Terms and Conditions
By continuing to use the App, you agree as follows:
You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
You will use the App in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by Owner from time to time; and
You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement.
If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the App.
Owner's License to You
Any communications or material of any kind that you email, post, or otherwise transmit to Owner using the App, including data, questions, comments,
Or suggestions (your "Communications") will become the property of Owner. You hereby grant a license to Owner to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information.
You agree to be bound by any affirmance, assent, or agreement you transmit to Owner using the App, including but not limited to any consent you give to receive communications from Owner solely through electronic transmission. You agree that, when in the future you click on an "I agree," "I consent" or other similarly worded "button" or entry field in the App, your agreement or consent will be instantly legally binding and enforceable and the legal equivalent of your handwritten signature.
If you make any In-App Purchases in the App, then the App Store Provider's
Terms and conditions/EULA applicable to In-App Purchases will also apply.
Your carrier's data rates may apply to your use of the App. Use of the App requires data transfer between your device and one or more servers. The cost of data transfer is your responsibility.
Use of WECOUNT Fitness Services
The following requirements apply to your use of the App:
You will not use any electronic communication feature of the App for any purpose that is unlawful, tortious, abusive, intrusive on another's privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful
You will not use the App to 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 or store personal data about other users of the App.
You will not use the App for any commercial purpose not expressly approved by Owner in writing. You will not use the App to upload, post, email, or otherwise transmit any advertising or promotional materials, including without limitation, "junk mail," "surveys," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or unauthorized communication.
You will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
You will not use the App when you are driving a motor vehicle, even if doing so is legally permitted in your location.
Owner may remove any material which Owner deems to violate any of these requirements. Failure to comply with these requirements may result in termination of your license to use the App.
Security of Data Transmission and Storage
Electronic communications using the App may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and Owner or between you and other parties.
Owner and its affiliates, and agents are permitted, but not obligated, to review or retain your Communications. Owner may monitor your Communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the App, or for other reasons. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which Owner or its affiliates or agents monitor your Communications and enforces or fails to enforce the terms of the Agreement. In no event will Owner or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by Owner or its affiliates or agents.
We reserve the right to disclose your personal information as required by law, such as to comply with a subpoena, bankruptcy proceedings or similar legal process, and when we believe that disclosure is necessary t protect our rights, protect your safety or the safety of others, investigate fraud and/or to comply with a judicial proceeding, court order, or legal process served on our Site.
In the event we go through a business transition, such as a merger, acquisition by another company, or sale of all or a portion of our business assets, your personal information will likely be among the assets transferred.
With the exception of the foregoing, we will not sell or share your personal information with anyone. If you are located in the EU, you will also be asked to provide clear and unequivocal affirmative consent to the collection, processing, and sharing of your user information.
Notice to EU Individuals: these terms and conditions and the enumerated policies are intended to comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the "General Data Protection
Regulation" or "GDPR") and provide appropriate protection and care with respect to the treatment of your user information in accordance with the GDPR.
Notice to EU Individuals
Owner will not process your user information without a lawful basis to do so, as such bases are defined in Article 6 of the GDPR. In general, Owner will process your user information on the legal bases of consent, contract, or legal obligation. Owner may also process certain user information on the basis of the following legitimate interests, provided that such interests are not overridden by your privacy rights and interests: delivering and continuing to develop and improve the App, learning from your behavior on the App to better serve you and other users, helping us modify or
enhance the App, receiving insight as to what users do (and don't) like about the App or aspects thereof, and providing a stable, consistent, and secure user experience. For more information, see the GDPR Notice on our Site, the terms of which are incorporated herein, if applicable to you.
GENERAL TERMS AND CONDITIONS
- 1. Disclaimer of Warranties.
Neither the Owner nor any other party involved in creating, producing, or delivering the App makes any representations about the
suitability of the content of this App for any purpose, nor that your use of the App will be uninterrupted or error-free.EVERYTHING IN THE APP IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,INCLUDING,BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,OR NON- INFRINGEMENT. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
- 2 Limitation of Liabilities.
Neither the Owner nor any other party involved in creating, producing, or delivering the App assumes any responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the App or your downloading of any materials, data, text, images, video, or audio from this App. Your use of the App is at your risk.NO SUCH PARTY SHALL BE LIABLE FOR ANY INCIDENTAL,CONSEQUENTIAL, SPECIAL,INDIRECT,OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO,OR USE OF,THE APP.IN NO EVENT SHALL THE
COMPANY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT
LIMITED TO, NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING THE APP.
- 3 Waiver and release of liability for injuries to persons or property.
YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM.YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR,NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS,OR TREATMENT.IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH.YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN,GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL.DO NOT DISREGARD,AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FRO YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE WECOUNT FITNESS SITE OR APP. THE USE OF INFORMATION PROVIDED THROUGH THE WECOUNT FITNESS SITE OR APP IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.
NOTHING STATED OR POSTED ON THE WECOUNT FITNESS SITE OR AVAILABLE
THROUGH THE APP IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE
PRACTICE OF MEDICAL OR COUNSELING CARE.FOR PURPOSES OF THESE TERMS,
THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES,WITHOUT LIMITATION,PSYCHIATRY,PSYCHOLOGY, PSYCHOTHERAPY,OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS,PROGNOSIS OR ADVICE.THE WECOUNT IS CONTINUALLY UNDER DEVELOPMENT AND,TO THE FULL EXTENT PERMITTED BY LAW,WECOUNT FITNESS MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE WECOUNT FITNESS SITE OR APP WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of the WECOUNT, you affirm that either (A) all of the following statements are true: (i) no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician or general practitioner has been specifically consulted by you and approved of your use of the WECOUNT.
You agree that your use of the Site or App is voluntary and that participation in the activities described on the WECOUNT Fitness Site or App or in other communications may subject you to the risk of physical strain, pain and injury (which could be minimal, serious, and/or result in death) and loss of or damage to your property (collectively, Risks).
Accordingly, you acknowledge and agree to the following:
You release and agree to hold harmless WECOUNT Fitness, its officers, directors, employees, agents, volunteers, and contractors (collectively, Releasees) from any
claim, demand, loss, liability, damages, and attorney fees and costs whatsoever arising from, related to, or resulting from these Risks (Claims), including those caused by the negligent acts or omissions of any or all of the、Releasees.
You recognize the physical exertion involved in the activities described on the WECOUNT Fitness Site and other communications and attest and certify that you are physically fit to participate safely, and you have not been advised otherwise by a health care professional.
You will be solely responsible for any and all medical and related bills that you may incur because of any injury, as well as costs related to loss or damage to your property, that you may sustain as a result of your participation, including those sustained on any premises where the activities are conducted and while you are traveling to and from such premises, regardless of the location or mode of transportation.
This Agreement will be binding on your estate, heirs, executors, administrators, successors, and assigns, as well as any other party asserting a Claim on your behalf or on behalf of your estate.
- 4.Content Submitted or Made Available for Inclusion in the App.
Any unsolicited communication or material that you transmit by electronic mail or otherwise ("Communications"), including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential and Non-proprietary. Any unsolicited communication or material that you transmit
or post may be used by the Owner or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcasting, distribution or posting. Furthermore, the Owner will be free to use any ideas, concepts, know-how, or techniques contained in any unsolicited communication or material that you send to the App for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information.
- 5. Images of People or Places.
Images of people or places displayed on the App are
either the property of, or used with permission by, the Owner. Any unauthorized
use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
- 6. Trademark Information.
The trademarks, logos, and service marks (collectively the "Trademarks") displayed on the App, are registered and unregistered Trademarks of the Owner and others. Nothing contained on the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the App without the written permission of the Owner or such third party that may own the Trademarks displayed on the App. Your use of the Trademarks displayed on the App, or any other content on the App, except as provided in these Terms and Conditions, is strictly prohibited. You are also advised that the Owner will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
- 7.No Included Maintenance and Support.
The Owner may deploy changes, updates, or enhancements to the App at any time. The Owner may provide maintenance and support for the, but has no obligation whatsoever to furnish such services and may terminate such services at any time without notice. You acknowledge that neither Apple (for iOS) nor Google (for Android) has any obligation to furnish any maintenance or support services in connection with the App.
- 8.Links.The App contains links to other sites.
The Owner does not control such other sites, and neither the Owner nor its agents or affiliates make any representations whatsoever concerning the content, accuracy, security or privacy of those sites. The fact that the Owner has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners or its providers. There are risks in using any information, software, or products found on the Internet, and the Owner cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you seek to hold the Owner or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites.
- 9. Third Party Accounts and Providers.
You will be able to connect your account to third party accounts such as Facebook®, TikTok®, Snapchat®, YouTube®, Google®, Instagram® or Twitter®. The App also uses one or more APls (application programming interfaces) to provide users with access to digital content or services provided by third parties. These API necessarily involve the exchange of information between the user's account and the content or service provider. By connecting your account to a third party account or using the APls, you acknowledge and agree that you are consenting to the continuous release of information about you to others (in accordance with your privacy settings on those third party sites, if applicable). If you do not want information about you to be shared in this manner, do not connect the App to any third-party accounts or use these features of the App. As the functionality of the App will be dependent on utilizing information from third parties, there is no option to opt out of connected third-party account information sharing while using the App.
- 10. Conduct of App Users.
Although the Owner may from time to time monitor or review postings, transmissions, and the like on the App, the Owner is under no obligation
to do so and assumes no responsibility or liability arising from the content of any such locations nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such locations on the App. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. The Owner retains the right to remove any such posting and will fully cooperate with any law enforcement authorities or court order requesting or directing the Owner to disclose the identity of anyone posting any such information or materials.
- 11. Dealings with Advertisers.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the App, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that the Owner shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the App.
- 12. Notices.
The Owner may give notice to its users by means of a general notice on this App, electronic mail to a user's email address on its records, or by written communication sent by first class mail to a user's address on its records.
- 13.DMCA;Notice and Procedure for Making Claims of Copyright Infringement.
The Owner respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please send an email to the Owner at firstname.lastname@example.org with the following information:
A physical or electronic signature of the person authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
ldentification 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 the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has 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
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- 14. International Use.
None of the products or underlying information or technology available at this App may be downloaded or otherwise exported (i) into (or to a national or resident of) Cuba, Iraq, Iran, Libya, North Korea, Sudan, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading from, or using the App, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You further agree to indemnify the Owner against any and all costs, liabilities, losses or expenses arising from, or relating to, any asserted violation by you of any of the laws and administrative regulations of the United States relating to the control of exports of commodities and technical data.
- 15.Monitoring, Copying, Altering or Interfering with the App.
You agree that you will not use any robot, spider, crawler, screen scraper, automated query program or other automatic device or manual process to monitor or copy the content contained in the App without our prior expressed written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the App. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from our Web Site or App without the prior expressed written permission of the Owner or the appropriate third party.
- 16.General Information.
These terms and conditions shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to these Terms and Conditions shall be filed only in the state or federal courts located in Wayne County, Michigan and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provisions of these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then the provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
- 17. Privacy and Information Security Policy.
The Owner respects your privacy and permits you to control the treatment of your personal information. A complete statement of the WECOUNT Fitness current Privacy and Information Security Policy can be found by clicking https://wecountfitness.com/policies/privacy- policy The Privacy and Information Security Policy is expressly incorporated into this Agreement.