Terms
TERMS OF SERVICES AND END USER LICENSE
Welcome to this website (“Site”) and to the mobile service of Nexercise. These Terms of Services and End User License (“Terms”) together with the Nexercise privacy policy (the “Privacy Policy”), and any other Nexercise policies posted on the site at any time (collectively, the “Nexercise Policies”) govern your use the Site, our mobile device software applications (the “App”), and any other web or mobile services or applications owned, controlled, or offered by Nexercise in association with this Site (collectively the “Services”). You agree to use the Services only in accordance with the Nexercise Policies, and that your use of the Services are subject to these Terms.
The terms “you” and “your” refer to (i) casual visitors to our Site, who do not participate in the Services, and (ii) users who download our App to use our Services on a mobile device (“Users”). The terms “Nexercise,” “we” and “us” refer to Nexercise, Inc.
Nexercise reserves the right to modify, alter, or otherwise update the content on and Services available through the Site, these Terms, and any other Nexercise Policies at any time. Nexercise will post such changes to the Site, and you agree to monitor the Site and the Nexercise Policies for such revisions. By downloading any applications, you agree to be bound by the Nexercise Policies, and your continued use of the Site and any Services following the posting of any changes to the Nexercise Policies will constitute your acceptance of such changes. Your use of the App and the Services are also subject to the Usage Rules set forth in the App Store Terms of Services.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT CONTINUE USING THE SITE AND DO NOT DOWNLOAD ANY OF THE APPS.
1. Our Services
Nexercise provides a new way to motivate yourself and others to exercise, share your activities with your friends, and collect rewards for your efforts. Nexercise provides methods for you to monitor and receive rewards for exercise you undertake, but you are responsible for choosing the exercise, the duration of the exercise, where you exercise, and what goods or services you receive through any rewards offered. You should consult with a physician before beginning any exercise program.
You do not have to register in order to visit the Site. To access certain features of the Services, such as connection through your mobile device and the ability to have access to reward, you will need to register with Nexercise and create a “User” account.
The Services are intended solely for Users who are 13 years of age or older, and any registration, use or access to the Services by anyone under 13 is strictly prohibited and in violation of these Terms. If you are under 18 years of age you may use the Services only if you either are an emancipated minor or have the consent of your parent or legal guardian, and are fully able and competent to be legally bound by these Terms.
Nexercise reserves the right, in its sole and absolute discretion, to suspend, deny, revoke, or otherwise restrict the access privileges of any user who at any time fails to comply with the Nexercise Policies. Additionally, Nexercise may, in its sole discretion institute legal action to prevent violation of these Terms of Use. All aspects of the Services are subject to change or elimination at Nexercise’s sole discretion.
2. Your Information.
You agree to: (1) provide certain true, current, complete and accurate information about you as required by the applicable registration processes for the Services; and (2) maintain and update according to Nexercise’s modification procedures the information you provided to Nexercise when using the Services as needed to keep such information current, complete and accurate.
You may control your User profile and how you interact with the Services by changing your settings on the Services. You agree Nexercise may rely on this information to send you information and notices regarding the Services. If you do not want to receive such messages on your mobile device, you may remain anonymous but as an anonymous user there will be Services and rewards in which you will not be able to participate. Once you create an account that is not anonymous, you cannot later choose to be anonymous through that account.
3. Sharing User Information
Some features of the Services may allow Users to share and/or create comments, questions, and other information (collectively “User Content”). You determine whether to share your information with other Users in connection with the Services and through other social media available through our Services. You assume all risks arising in connection with seeking or creating a location on the Services or any other activities. Always exercise common sense and caution. You are solely responsible for your interactions with other Nexercise Users. Nexercise does not control the User Content shared; you understand you may be exposed to User Content that is inaccurate or objectionable.
You may not post any User Content to or through the Services unless you have the necessary rights to do so. By posting any User Content on the public portions of the Service, you expressly grant to Nexercise a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, publish, distribute, publicly perform, publicly display, and make derivative works of all such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed. You may not post User Content if Nexercise’s use thereof will infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
4. User License
Nexercise Services. Subject to Nexercise Policies, you are hereby granted a non-exclusive, non-transferable, revocable license to download and use a compiled code copy of the Nexercise App for one User account on one iPhone or iPod touch owned or controlled by you, for your personal use. Your use is further subject to the Usage Rules set forth in the App Store Terms of Use. To use the Nexercise App you must have a mobile device that is compatible with the Service. Nexercise does not warrant that the App or Services will be compatible with your mobile device.
Restrictions. Unless expressly authorized by Nexercise, you may not: (i) modify, disassemble, decompile or reverse engineer the App or any other Nexercise Content (as defined below), except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App or Nexercise Content to any third party or use the App to provide time sharing or any other fee-based services; (iii) make additional copies of the App or Nexercise Content; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App or Nexercise Content.
You are responsible for all activity related to your access or use of the Site and the Services. You also are responsible for all activities under your account or using your device. In addition to the other restrictions contained in these Terms, you agree that you will not, directly or indirectly, without our prior express written consent, (1) disguise the origin of information transmitted to, or frame this Site, impersonate or “spoof” any individual or misrepresent your affiliation with any individual or entity, (2) infringe upon or violate the intellectual property rights, privacy rights, or any other similar rights of any individual or entity while using this Site, the Services or the Content or posting any content or information through the Services, (3) post, publish or transmit any information using this Site or the Services that is abusive, defamatory, false, harassing, inaccurate, inappropriate, libelous, misleading, offensive, obscene, sexually explicit, threatening, unlawful, vulgar or otherwise objectionable, (4) use the Site or the Services for the purpose of sending unsolicited e-mail, spam, or other forms of unsolicited communications, (5) install, upload or otherwise introduce any material to this Site or any other site, system or service that contains any malicious or unauthorized computer programming routines, (6) corrupt, hack, modify or otherwise tamper with this Site, the Services or the Content, or use the Site or Services to corrupt, hack, modify or otherwise tamper with any other site or to probe the vulnerability of any other site or services, (7) interfere with any other User’s access to or use of the Site or the Services, or attempt to gain unauthorized access to User data through the Services or the Site, or (8) use the Site or the Services for the unauthorized interception of any communications.
Software Upgrades. You acknowledge that Nexercise may, but is not required to issue upgraded versions of the App, and may require you to upgrade the version of the App you are using on your mobile device to continue using the Service. You agree that the Terms apply to all such upgrades.
Rights Reserved. The foregoing license grant is not a sale of the App or any copy thereof. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly permitted by the Nexercise Policies, is void. Nexercise reserves all rights not expressly granted. Nexercise may terminate this license and the Services at any time for any reason or no reason.
Export Control. The Services originate in the United States, and are subject to United States export laws and regulations. You agree to comply with all United States and foreign laws related to use of the App and the Services. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Unless otherwise explicitly stated, all materials found on the Site and through the Services are solely directed to individuals, companies, or other entities located in the United States.
Additional EULA Terms. You acknowledge and agree that this agreement is solely between you and Nexercise, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the App, the Services or any content thereof. Your use of the App and Services must comply with the Usage Rules set forth in the App Store Terms of Service. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price, if any is paid by you, for the App ; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Nexercise as provider of the software. You acknowledge and agree that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Nexercise as provider of the software. You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of that App as permitted under these Terms infringes that third party’s intellectual property rights, Nexercise, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim solely to the extent required by these Terms. This provision shall not be construed as creating any additional obligations on the part of Nexercise to the extent not otherwise provided by the Terms. You and Nexercise acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the App against you as a third party beneficiary thereof.
5. Our Proprietary Rights
Except for your User Content, all right, title, and interest in and to the Site and the Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents and patentable ideas, inventions, and/or improvements, trademarks, service marks and logos, copyrights, photographs, audio, videos, music, all software and inventions used on and in connection with this Site, and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services (the “Content”) are and will remain the exclusive property of Nexercise and its licensors. Use of the Content for any purpose not expressly permitted by these Terms is strictly prohibited. Other than the non-exclusive rights expressly granted in the Nexercise Policies you do not obtain any rights, express or implied, in the Content, in the App or any part of the Services.
Any feedback, comments, or suggestions you may provide us is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
6. Paid Services; Fictional Property
Billing Policies and Fees. You may use the App without charge. If you elect to use paid aspects of the Nexercise Services, including any third party offers, you agree to the pricing, payment and billing policies applicable to such fees and charges. You are responsible for any fees payable to third parties as a result of your use of the Services, including, without limitation, fees due to your mobile device service provider, fees for the purchase of goods or services for which you receive Vouchers, and any other third party fees you incur.
Accounts. Certain aspects of the Services may allow you to accumulate points or other fictional currency (“Nexercise Points”) accumulated in a fictional account (“Account”). This is not a bank deposit and you will not receive any interest on or payment for your Account. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Nexercise on Nexercise servers. Nexercise Points are not redeemable for any sum of money or monetary value from Nexercise at any time. You agree that Nexercise has the absolute right to manage, regulate, control, modify and/or eliminate such Nexercise Points as it sees fit in its sole discretion, in any general or specific case, without liability to you.
No Refunds. You may cancel your Account and the Services at any time; however, there are no refunds for cancellation. Nexercise has the right at any time for any reason or no reason to suspend or terminate your Account, and/or refuse any and all current or future use of the Services without notice or liability to you. In the event that Nexercise suspends or terminates your Account, or use of the Services, you understand and agree that you shall receive no refund or exchange for any Nexercise Points, any unused Vouchers, any content or data associated with your Nexercise Account, or for anything else.
7. Privacy
Click here to view our Privacy Policy.
8. Third-Party Links and Rewards.
The Site or Services may provide Users access to discounted coupons, special offers or vouchers (“Vouchers”) to goods or services sold through third party merchants (the “Merchants”). Nexercise has no control over, and assumes no responsibility or liability for, any such goods or services. See Section 13 below for more information regarding Vouchers. If you access a third party website from Nexercise, you do so at your own risk, and you understand that Nexercise’s Policies do not apply to your use of such sites. If you purchase services or goods using any Voucher, you do so at your own risk. You expressly relieve Nexercise from any and all liability arising from your purchase and or use of any third-party Vouchers, services or goods.
9. Indemnity
You agree to defend, indemnify and hold harmless Nexercise and its subsidiaries, agents, managers, partners (including, without limitation, its wireless carrier partners), and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you, and any goods or services purchased by you with the Vouchers; (ii) any injury or loss in respect of use of our App during an exercise program; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any Policies, or any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; (vi) any other party’s access and use of the Services with your device, account or other code; and (vii) your use the Services to meet another User in-person or to locate and/or visit any offline place or event.
10. No Warranty
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEXERCISE, ITS PARTNERS AND LICENSORS DISCLAIM ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. NEXERCISE IS NOT RESPONSIBLE FOR THE EXERCISES YOU UNDERTAKE, WHERE YOU EXERCISE OR THE DURATION OF YOUR WORKOUT. YOU ARE RESPONSIBLE FOR CONSULTING WITH A PHYSICIAN PRIOR TO UNDERTAKING ANY EXERCISE PROGRAM, AND NEXERCISE HAS NO LIABILITY FOR ANY INJURIES YOU SUFFER IN CONNECTION WITH YOUR EXERCISE PROGRAM.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEXERCISE, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS LICENSORS OR PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE SERVICES; (C) THE SERVICES OR YOUR EXERCISE PROGRAM WHICH IS MONITORED USING THE SERVICES; OR (D) ANY OTHER INTERACTIONS WITH NEXERCISE OR ANY OTHER USER OF THE NEXERCISE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT NEXERCISE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
12. Assignment
Your rights and licenses granted hereunder may not be transferred or assigned by you. Nexercise’s rights to assign these terms are not subject to restriction.
13. Terms of Sale
In monitoring your exercise, you may accumulate Points that will permit you to gain access to Vouchers through the Services. You may use the App anonymously, without creating an account, but in order to receive and/or redeem certain Vouchers and to participate in certain Services, you may be required to create an account. This is required so we can verify that you have completed the requisite activities to warrant the award of a Voucher.
Vouchers are redeemable for goods or services by the issuing Merchant within the timeframe specified in the Voucher. Additional terms and restrictions may be set out in the Voucher and will apply. The issuing Merchant, not Nexercise, sets the terms associated with the Voucher and is responsible for the goods and services you purchase with the Voucher. The permitted Redemption period is determined by the Merchant, and shall be contained in the Voucher offer on your device. Neither Nexercise nor the Merchant is responsible for lost or stolen Vouchers or for Vouchers that expire. Generally, Vouchers are limited to one (1) Voucher per redemption/purchase unless otherwise permitted by the issuing Merchant. Reproduction, sale or trade of Vouchers is generally prohibited. Vouchers cannot be combined with any other vouchers, third party certificates, coupons, or promotions, unless otherwise specified by the Merchant. Vouchers are redeemable in their entirety and on a one time basis only and may not be redeemed incrementally. If you redeem the Voucher for less than its face value, you will not be entitled to a credit or cash.
Any attempted redemption not consistent with these Terms will render the Voucher void. Vouchers are void to the extent prohibited by law.
A. Terms and Conditions for Restaurant-Specific Vouchers.
For this section, “Restaurant” shall be defined as a Merchant who offers food and beverage for sale in its regular business operations, and is making such food and beverages available to holders of Vouchers. Use of Restaurant-Specific Vouchers for alcoholic beverages is at the sole discretion of the Restaurant and is subject to compliance with applicable law.
Restaurant-Specific Vouchers cannot be used for taxes, tips or prior balances, unless permitted by the Restaurant. The issuing of credit is at the sole discretion of the Restaurant unless otherwise required by applicable law.
B. Terms and Conditions for Non-Restaurant Merchant Vouchers
Merchant Vouchers may be applied only to services and merchandise sold by Merchant, and may not be applied to shipping or handling charges. The issuing of credit is at the sole discretion of the Merchant unless otherwise required by law.
C. Additional Terms and Conditions for All Vouchers.
Nexercise is not responsible for any injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Merchant. You waive, and release Nexercise and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to any act or omission of Merchant in connection with a Voucher or the services/goods provided in connection therewith and other laws relating to the redemption of the Vouchers or any portion thereof.
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14. General
Governing Law. You agree that: (i) the Services shall be deemed solely based in the State of Maryland, United States of America; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over Nexercise, either specific or general, in jurisdictions other than Maryland. These Terms shall be governed by the internal substantive laws of the State of Maryland, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and Nexercise that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in Maryland, and you agree to submit to the jurisdiction of such courts.
Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY LAW, THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THESE TERMS, OR THE USE OF THE APP OR SERVICES.
Notification Procedures. Nexercise may provide notifications, whether such notifications are required by law or otherwise, to you via email notice, written or hard copy notice, text message, or through conspicuous posting of such notice on our website, as determined by Nexercise in our sole discretion.
Entire Agreement/Severability. These Terms, and the other Policies, together with any amendments and other legal terms referenced in the Policies, shall constitute the entire agreement between you and Nexercise concerning the Services. If any provision is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
No Waiver. No waiver of any term of the Nexercise Policies shall be deemed a further or continuing waiver of such term or any other term, and Nexercise’s failure to assert any right or provision under the Nexercise Policies or Terms shall not constitute a waiver of such right or provision.
Survival. You continue to be bound by the Nexercise Policies after termination of your account. Provisions of these Terms which by their nature are intended to survive termination of your use of the Services will survive, including but not limited to Sections 5, 6, 9, 10, 11, and 12–14.
Force Majeure. We will not be liable for any delay or failure of performance, and no delay or failure of performance will constitute a default or give rise to any liability for damages if such delay or failure is caused by causes beyond our control, including, without limitation, acts of God, war, terrorism, and civil disturbance.
Please contact us with any questions, complaints or claims regarding the Nexercise Policies or its Services.
Nexercise, Inc. 8070 Georgia Avenue, Suite 403, Silver Spring, Maryland 20910.
Customer Service Inquiries | [email protected]
The effective date and version of these Terms is 1/1/2001.
