NEXERCISE TERMS OF SERVICE
Welcome, bienvenue, and willkommen! Thank you for visiting our little corner of the web and, if you’re a really cool dude or dudette, downloading our App. Please read these Terms of Service carefully because they’re a binding contract and although our legal documents might be less formal than most Sites/Apps out there, we still have our standards.
2. Words Mean Things
We’re no Noah Webster, but we do consider ourselves pretty good at explaining things. For example:
- “Agreement” refers to these Terms of Service;
- “App(s)” refers to our mobile applications made available to you through Apple AppStore, Google Play or Android Marketplace;
- “Nexercise” refers to our company, known as “Nexercise, Inc.”; our Site; our Service; or a combination of all or some of the preceding definitions, depending on the context in which the word is used;
- “Registered User” is a User who has registered an account on the Website (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third Party Account”), or has an account with the applications provider for the User’s mobile device.
- “Service” refers to the services that we provide, including our Apps, our Site, and referring you to third parties that provide good and services you may be interested in;
- “User” refers to users of our Apps and visitors to our Site;
- “You” refers to you, the person who is entering into this Agreement with Nexercise.
3. Nexercise? What’s a Nexercise?
Nexercise is a mobile app that tracks your physical activities without any hardware accessory, motivates you using community leaderboards, and offers rewards for successfully accomplishing your goals. The rewards are intrinsic, in the form of points, levels, and badges; and extrinsic, in the form of discounts and coupons on real products provided by third party providers. Nexercise is also a fun game and social support network. Finally, we have the ability to track and validate exercise activity using the accelerometer, gyroscope, and GPS. Basically, we have all the advantages of a high school gym teacher without the yelling or smelling of five-day-old B.O.
We also offer other products and services, such as the services available through www.sworkit.com that help you stay fit by using our circuit training videos.
We’re a fun company, but we do have to have a few standards. If you wanna use the awesomeness that is our Apps and Site:
- You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, Nexercise, and yourself. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service. We apologize to Kim Jong-un for the inconvenience.
- To make any purchases through our App, you must be the minimum age required to enter into a contract in the area in which you reside, and, in any event, must not be less than 18 years age.
- To use our free App itself, you must be at least 13 years of age in accordance with the Children’s Online Privacy Protection Act.
We appreciate that you like our App and you’re enthusiastic about exercising, but please don’t overdo it! If you have any medical conditions or are thinking about doing something really strenuous or unusual, you should consult your doctor first. Smartphones are great, but they’re not that great as defibrillators or asthma inhalers, so please make safety your #1 priority!
6. License to Bill
Subject to your compliance with this Agreement, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You understand that the Site, Apps and the Services are evolving. As a result, we may require you to accept updates to the Site, Apps or the Services that you have installed on your computer or mobile device. You acknowledge and agree that we may update the Site, Apps and/or the Services with or without notifying you.
As a part of the Site, Apps or Service, you may have access to materials that are hosted by another party. You agree that it is impossible for Nexercise to monitor such materials and that you access these materials at your own risk.
In order to access certain features of the Site, Apps and/or the Services you may be required to become a Registered User. If you access the Services through an SNS as part of the functionality of the Site, Apps or the Services, you may link your Account with Third Party Accounts, by either (i) providing your Third Party Account login information to Nexercise through the Site, Apps or the Services; or (ii) allowing Nexercise to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Nexercise and/or grant Nexercise access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Nexercise to pay any fees or making Nexercise subject to any usage limitations imposed by such third party service providers. By granting Nexercise access to any Third Party Accounts, you understand that Nexercise will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Site, Apps and/or Services via your Account Unless otherwise specified in this Agreement, all SNS Content shall be considered to be Your Content (as defined below) for all purposes of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Site, Apps and Services. Please note that if a Third Party Account or associated service becomes unavailable or Nexercise’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site, Apps and Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the Apps. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Nexercise makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and Nexercise is not responsible for any SNS Content.
You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Nexercise immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
You must provide all equipment and software necessary to connect to the Site, Apps and the Services, including but not limited to, a mobile device that is suitable to connect with and use the Site, Apps and the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Site, Apps and the Services.
7. Rules of Use
Once you have signed up for Nexercise, we have some additional rules for you (Ha! You thought it’d be an anarchy, didn’t you?). You must not:
- Make the Apps available to any third party or try to sell access to the Apps for money or anything else of value.
- Modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site, Apps or Services.
- Access the Site, Apps or Services in order to build a similar or competitive website, application or service.
- Use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site, Apps or Services.
- Violate the laws of the United States, its states, alien planets, or any foreign political entity having jurisdiction over this Agreement, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.
- Post or send anything violent, threatening, pornographic, racist, hateful, or otherwise objectionable. What is “objectionable” is up to us, but may include posting pictures of yourself before you started exercising in workout clothes that are two sizes too small for you.
- Infringe on anyone’s intellectual property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party. Basically, don’t do anything online to someone that would get you a black eye if you did it in real life.
- Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of our Site, Service, or its Users’ computers.
- Run around the pool.
- Do anything else that Nexercise believes could harm us or any third party.
Nexercise, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Site, Apps or the Services terminates the licenses granted by Nexercise pursuant to this Agreement.
8. Paid Goods
We may offer third party goods and services through our Site, Apps and Services. Please note that all terms surrounding payment, order fulfillment, and refunds are covered by such third party provider and not Nexercise, and are hereby incorporated into this Agreement by reference. So, if your order doesn’t get to you in time for your big weekly Nexercise fan club meeting, please don’t yell at us because it wasn’t our fault.
Through our Sites and Apps, Nexercise offers rewards to its Users like points, levels, and badges. We know you’re saying, “Wow, that’s awesome and it’s a great motivator, and I totally want to use Nexercise now.” But wait! There’s more!
Not only do we give you cool achievement rewards that you can show off, but we also give you coupons for offers through third parties. All we ask is one thing: Since those third parties aren’t controlled by Nexercise (that’s what makes them third parties), we can’t really determine whether they’ll follow through with honoring those coupons. We try to stick with companies that will honor their coupons and not suddenly close shop, but we can’t guarantee it, so please don’t get mad if they do something unprofessional—we will try to make it up to you by finding you more great offers.
Nexercise prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the ‘real world’ of anything that appears or originates in the Services. Accordingly, you may not trade, sell or attempt to sell in-game items or currency for ‘real’ money, or exchange those items or currency for value of any kind outside of a game. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Site, Apps or the Services, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Nexercise, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services, Apps, or the Site (“Your Content”), and other Users of the Services, and not Nexercise, are similarly responsible for all Content they Make Available through the Services, Apps, the Software or the Site (“User Content”).
You acknowledge that Nexercise has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Nexercise reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Nexercise pre-screens, refuses or removes any Content, you acknowledge that Nexercise will do so for Company’s benefit, not yours. Without limiting the foregoing, Nexercise shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
Unless expressly agreed to by Nexercise in writing elsewhere, Nexercise has no obligation to store any of Your Content that you Make Available on the Site, Apps or via the Services. Nexercise has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Company retains the right to create reasonable limits on Nexercise s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Nexercise in its sole discretion.
Nexercise allows support comments from other Users (Wooooh, you can do it!), but we need to know that you wrote those comments and not Litigious Industries Incorporated or something because we don’t need to be spending our time responding to copyright complaints. Whenever submitting Your Content to our Sites or Apps, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of Your Content that you submit to us. You warrant to us that you have the right to grant us this right over Your Content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims regarding the same.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Site, Apps or the Services, including, but not limited to, the virtual goods or currency appearing or originating in any Nexercise game, whether earned in a game or purchased from Nexercise, or any other attributes associated with an account or stored on the Site, Apps or Services. Nexercise prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services. Accordingly, you may not trade, sell or attempt to sell in-game items or currency for “real” money, or exchange those items or currency for value of any kind outside of a game. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.”
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Website or the Services, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Nexercise.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Nexercise through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Nexercise has no obligations (including without limitation obligations of confidentiality) with respect to such You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nexercise a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Site, Apps and the Services.
11. Third Party Services
The Site, Services, and Apps may contain links to third-party websites (“Third Party Websites”) and advertisements for third parties (collectively, “Third Party Websites & Ads”). When you click on a link to a Third Party Website or Ad, we will not warn you that you have left our Site or App and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of Nexercise. Nexercise is not responsible for any Third Party Websites & Ads. Nexercise provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our Site or App, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You acknowledge and agree that the availability of the Apps and the Services is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that this Agreement is between you and Nexercise and not with the App Store. Nexercise, not the App Store, is solely responsible for the Site, Services, and Apps, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App or Services. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the App and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce it .
12. Our Name
“Nexercise” and “Sworkit” are trademarks used by us, Nexercise, Inc., to uniquely identify our Site, Apps, Service, and business. You agree not to use this phrase anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our website or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own app. The exception to this paragraph is that you may put our trademark on the Moon so that it’s visible from Earth. Not only would we be really impressed, but we’d make you our Emperor of Public Relations.
13. Revocation of Consent
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, or surrender it to us, even if it would cause a loss to you. Basically, don’t write “Nexercise” on your car if it’s a really cool car, because if we find out about it we’ll probably just take it from you.
14. Plagiarism’s Bad, Imkay?
Once upon a time, elves gave us a magical shield to protect us from evil copyright lawyers who might try to sue us just ‘cause someone else posted something without permission on our Site: That shield was called the DMCA. If you believe that your copyright has been infringed, stop moping and send us a DMCA notice which contains:
- Your name.
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed.
- The location on our website of the infringing copy.
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent at [email protected] (a signature made of electrons instead of ink is fine since you’re e-mailing it). And please, don’t e-mail us just to say “What’chu talkin’ ‘bout?”
Although U.S. law does not provide for a similar procedure for trademark infringement (apparently the elves who invented the DMCA liked trademark owners more), we recommend that you send us similar information to that above in regards to any allegation of trademark infringement, and we will address it as soon as practicable.
15. Things Mean People Say
We know this may come as a surprise, but sometimes people on the Internet can act way tougher than they are in person and maybe even say some defamatory things when they’re tossing out insults. Similar to the DMCA provisions above, United States law—specifically Section 230 of the Communications Decency Act—creates a defense for us for the actions of third parties in regards to any defamatory content posted on our website. Although we are not liable for defamatory words posted on our website by our Users even if given notice, we do prohibit defamation under this Agreement and we may, if we believe the situation warrants it, take action against the offending User, including but not limited to telling their mom on them. Please notify us at [email protected] if any of our Users have posted anything that you believe is defamatory.
16. Representations & Warranties; Limits on our Liability
YES, OUR LAWYERS KNOW HOW A CAPS LOCK KEY WORKS, BUT THIS SECTION IS REALLY IMPORTANT BECAUSE IT LIMITS OUR LIABILITY TO YOU SO WE DECIDED TO YELL. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, RUDE NOISES, FUNNY FACES, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
WE ARE NOT RESPONSIBLE FOR ANY FAILURE OF A THIRD PARTY, INCLUDING SPREADSHIRT OR ANY COUPON PARTNERS, TO FULFILL THEIR COMMITMENTS TO YOU. YELLING AT US ABOUT THEM WILL ONLY MAKE US SAD.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY.
NEXERCISE DOES NOT OFFER MEDICAL ADVICE. ANY CONTENT ACCESSED THROUGH THE SITE, APPS OR SERVICES ARE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE MEDICAL ADVICE. THE CONTENT SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE TAKING ANY DRUG, CHANGING YOUR DIET, OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION ACCESSED THROUGH THE SITE, APPS OR SERVICES . CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability:Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NEXERCISE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, APPS, THE SERVICES OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, THE APPS OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SITE, THE APPS OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SITE, THE APPS OR THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, APPS OR THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SITE, APPS OR THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL NEXERCISE BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY NEXERCISE AS A RESULT OF YOUR USE OF THE SITE, APPS AND THE SERVICES. IF YOU HAVE NOT PAID NEXERCISE ANY AMOUNTS, NEXERCISE’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEXERCISE AND YOU.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS, WHO ARE TOTAL HIPPIES, MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOU HEREBY DO THE WAVE AT A BASEBALL GAME.
17. Indemnity (Don’t break it if you don’t want to buy it)
Please treat our Site like you would if you owned it and had to pay all of the legal bills relating to it. You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of our website or acceptance of the offers contained on it. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
In other words, if you do something bad, and someone comes after us, we can make you pay for it and laugh at you. Please, don’t do anything bad.
18. Throwing Down the Gauntlet
As Nexercise has not yet acquired enough investors to open its planned headquarters in a Martian colony, this Agreement shall be governed by the laws in force in the State of Delaware. The offer and acceptance of this contract are deemed to have occurred in the State of Delaware.
You agree that any dispute arising from or relating to this Agreement will be heard in the lowest civil court in the State of Delaware (“Small Claims Court”). Uncivil courts are too rude so we’re going to stick with the civil ones.
If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court (so don’t accuse us of fishing in your territorial waters and bring us to international court or something… just sue us for the cost of the fish).
If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court. In other words, if the small claims limit is $10,000 and you think we owe you $10,001, you’ll have to bite the bullet and not go after that extra $1.
You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court. This is to protect us and all our heirs and successors from being banished to the lands beyond the realm—you’ll just have to accept cash instead.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements. So, you should only bring us to court if you really think we did something bad, and even then, just e-mail us first and we’ll fix whatever we broke if we think it’s our fault.
19. Force Majeure (Fancy French word for “Not our bad”)
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, happy thoughts, labor shortages (including lawful and unlawful strikes), embargoes, zombie attacks, postal disruption, communication disruption, evil dolphins from outer space, failure or shortage of infrastructure, shortage of materials, shortness of midgets, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, we will either challenge you to a race around the world in 80 days, or Nexercise will just pick which one still applies.
Nexercise reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law, including but not limited to the Geneva Convention and the Bylaws of the International Society of Lawn Bowling. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future. So, don’t think we’ll let you get away with something just because you happen to know that we didn’t go after Bob for the same thing.
22. Termination (Hasta la vista, baby)
We may terminate your account or access as well as access to our Site, Apps and Service to you at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
23. Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. We may do so by making paper airplanes out of the rights and throwing them randomly off of buildings, or we may do it because we want to sell our company, or for any other reason.
We may amend this Agreement from time to time. When we amend this Agreement, we will post the changes, so even though it’s boring, you have to keep reading this page each time you use our Service since you agree that you will—well, agree—to the changes through your continued use of our Service. If you do not agree to the changes, you must cease using our Site and Service immediately and inform us of your non-agreement with sufficient information to identify your account at [email protected] so that we may disable your account.
25. Downloading Apps from iTunes. The following applies to any App accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
(a) You acknowledge and agree that (i) these Terms are concluded between you and Nexercise only, and not Apple, and (ii) Nexercise, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Nexercise and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Nexercise.
(d) You and Nexercise acknowledge that, as between Nexercise and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Nexercise acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Nexercise and Apple, Nexercise, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
(f) You and Nexercise acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
26. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Last Modified: August 5, 2014