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” refers to our Nexercise software made available for you through Apple iTunes or Google Play or Amazon 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;
- “Service” refers to the services that we provide, including our App, our Site, and referring you to a third party apparel provider;
- “Site” refers to our website, www.nexercise.com;
- “User” refers to users of our App 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 medals; 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 smell of five-day-old B.O.
We’re a fun company, but we do have to have a few standards.
If you wanna use the awesomeness that is Nexercise:
- 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 exercise Apps, but they’re not that great as defibrillators or asthma inhalers, so please make safety your #1 priority!
6. License to Bill
Nexercise gives a limited license for its software. You may download one copy of our software from whichever app store you use, and must not reverse engineer it, copy it, or otherwise distribute or modify it. Since it’s a license and not a permanent transfer, we’re allowed to call takesies-backies and can make you stop using it upon request.
Also, Nexercise is free, but we let the more generous amongst our Users donate to us from within their App. You consent to our billing you if you decide to donate to us. We promise not to fudge the numbers like in Office Space, so if you think the billing was inaccurate, please tell us ASAP and we will beat our accountant with a rubber chicken.
Since our App may use the GPS and other features on your phone, you also agree that you will be solely responsible for any charges incurred with your mobile carrier. If you go to Timbuktu or some place outside of your normal coverage area, just save your activities and submit them when you get home or to a friendly Wi-Fi connection.
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:
- 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, showing nudity, racist, hateful, or otherwise objectionable. What is “objectionable” is up to us, but includes spammy messages or pictures of yourself that you wouldn’t show to your boss.
- 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 with scissors or around the pool.
- Do anything else that Nexercise believes could harm us or any third party.
8. Paid Goods
Nexercise’s App is free, so we need to make $$$ some other way. We offer apparel through a partner company, Spreadshirt.com. Please note that all terms surrounding payment, order fulfillment, and refunds are covered by Spreadshirt 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.
Nexercise offers rewards to its Users like points, levels, and medals. 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. However, do let us know if you’re having issues because we need to know that sort of thing.
10. Our Copyright
Our content is really important to us, and we sweated over a hot stove all day to make it. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on our Site without receiving our prior written permission.
11. Your Copyright
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 content to our website, 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 the content that you submit to us. You warrant to us that you have the right to grant us this right over the 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.
12. Our Name
“Nexercise” is a trademark used by us, Nexercise, Inc., to uniquely identify our Site, 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
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.
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.
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 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.
Last Modified: March 28, 2013