This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual user (“you”) and Aaptiv Inc. (“Aaptiv,” “we,” “us” or “our”) governing your use of the mobile software applications that Aaptiv makes available for download (individually and collectively, the “App”), the related website located at www.aaptiv.com and any other online properties owned or controlled by or on behalf of Aaptiv (collectively with the App, the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN YOU SHOULD NOT USE THE SERVICE.
Material Terms : As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
● the Service is licensed, not sold, to you, and you may use the Service only as set forth in this EULA;
● you use the Service at your sole risk, and you should consult with a physician or other health care professional before commencing use of the Service;
● the use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
● we provide the App to you on an “as is” basis without warranties of any kind and Aaptiv’s liability to you is limited;
● disputes arising between you and Aaptiv will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in section 11 below, you and Aaptiv are each waiving the right to a trial by jury or to participate in a class action;
1. General Terms and Conditions.
a. Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing, and otherwise using the Service.
c. Jurisdictional Issues. The Service is controlled and operated by Aaptiv from its offices in the State of New York. Aaptiv makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
d. Eligibility. The service is not for persons under the age of 13 (or under 16 for individuals in the European Union) or for any users previously suspended or removed from the service by Aaptiv. IF YOU ARE UNDER 13 YEARS OF AGE (or under 16 in the EU), YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
2. The Service.
a. Description. The Service provides you with the opportunity to take workout classes (each, a “Class”) and receiving coaching from trainers solely for your personal use. Classes are available for a variety of skill levels, for a variety of activities, and for varying durations. Not all classes will be available in perpetuity and Classes are subject to change at any time with or without notice and without any liability to you.
b. Mobile Services. The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, “ Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
a. Log-In Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download the App and register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You may not share the credentials for your Account with any third party. You agree to notify Aaptiv immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Aaptiv will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Aaptiv of such unauthorized use or loss of your credentials.
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information to Aaptiv. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Aaptiv, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Aaptiv may terminate your Account immediately without notice and without any liability.
4. Subscriptions and Payment.
a. Initial Subscription Payment. To enjoy the full benefits of the Service, including Classes, you must purchase a subscription to the Service. You will be charged the stated subscription fee and any applicable taxes and service fees upon enrollment, unless your membership starts with a free trial, as detailed below.
b. Free Trials. If your Aaptiv membership starts with a free trial period, the duration of which is specified during enrollment, WE WILL BILL YOUR DESIGNATED PAYMENT METHOD FOR THE SUBSCRIPTION FEE AT THE END OF THE FREE TRIAL PERIOD, unless you cancel prior to the end of the free trial period. By providing your payment details when enrolling in the free trial, you agree that Aaptiv may charge the subscription fee to your designated payment method upon conclusion of the free trial period. Free trials are only available to first-time subscribers. Aaptiv reserves the right, in its sole discretion, to determine your free trial eligibility.
b. Automatically Renewable Subscriptions. By purchasing a subscription to the Service, you agree that, upon expiration of the initial subscription term, your subscription will automatically renew for successive periods of the same duration as the initial subscription unless and until you cancel your subscription.
c. Cancellation. You may cancel your subscription to the Service at any time, after which Aaptiv will not automatically renew your subscription. PLEASE NOTE THAT NO REFUNDS WILL BE ISSUED UPON CANCELLATION.
d. Recurring Charges. YOU AUTHORIZE AAPTIV TO CHARGE YOUR ACCOUNT USING THE PAYMENT METHOD ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. You will be billed for the same subscription plan (or the most similar subscription plan, if your prior plan is no longer available) at the then-current applicable subscription price plus any applicable taxes. We will process payment for any renewal subscription using the same billing cycle as your current subscription. Additional terms and conditions may apply upon renewal, and subscription fees may change at any time, to the fullest extent permitted under applicable law.
e. No Refunds. PAYMENTS ARE NON-REFUNDABLE. THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS . You are only eligible to cancel your subscription without incurring any payment obligation during your free trial period (if any), after which no refunds will be issued. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion.
f. Price Changes. Aaptiv reserves the right to adjust pricing at any time. At the end of any promotion, Aaptiv may, at its sole discretion, revert a member’s price per period to the current standard retail pricing for that membership type. Aaptiv may also discontinue certain pricing promotions at any time at its sole discretion.
5. Intellectual Property Rights.
a. License. Subject to your complete and ongoing compliance with this Agreement, Aaptiv hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your personal, non-commercial use. Aaptiv reserves all rights not expressly granted to you.
b. Content. Except for User Content, the content that Aaptiv provides to end users on or through the Service, including without limitation, any Class (including the programming of such Class), text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Aaptiv or its third party licensors (collectively, the “Aaptiv Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities. Your use of Aaptiv Content must be in compliance with applicable law. Aaptiv reserves all rights on the part of its licensors; users are not permitted to infringe the rights of the copyright owners of the sound recordings included on the Service or any musical works embodied therein (collectively “Music”). Classes are offered for individual use only by a single user per Account and users are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights for the Music used with any Classes. The unauthorized reproduction or distribution of the Music is expressly prohibited any may violated applicable law and subject you to liability for copyright infringement.
c. Marks. Aaptiv trademarks, service marks, and logos (the “ Aaptiv Trademarks”) used and displayed on the Service are Aaptiv’s registered and unregistered trademarks or service marks. You may not use any Trademarks as part of a link to or from the Service without Aaptiv’s prior express written consent. You may not remove any Trademarks identifying the ownership or origin of any Aaptiv Content. All goodwill generated from the use of any Aaptiv Trademark will inure solely to Aaptiv’s benefit.
6. User Content.
a. Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all Aaptiv Content.
b. Screening User Content. Aaptiv offers end users the ability to submit User Content to or transmit User Content through the Service. Aaptiv does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. Aaptiv does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will Aaptiv be liable in any way for any User Content.
c. Licenses to User Content. While you retain ownership of any rights you may have in your User Content, you hereby grant Aaptiv an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “ Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Aaptiv and the Service; (ii) displaying and sharing your User Content to other users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant Aaptiv a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content. Any User Content posted by you to or through the Service or transmitted to Aaptiv will be considered non-confidential and non-proprietary, and treated as such by Aaptiv, and may be used by Aaptiv in accordance with this EULA without notice to you and without any liability to Aaptiv.
d. You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of your Posting your User Content on the Service.
e. Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
f. Objectionable Content. You agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or (ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide) (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against such third party claims. If you encounter any Objectionable Content on the Service, then please immediately email Support@aaptiv.com. Aaptiv in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service.
7. Restrictions on Use of the Service.
a. In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to: make unauthorized copies or derivative works of any content made available on or through the Service; use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service; delete or alter any material Aaptiv or any other person or entity Posts on the Service; frame or link to any of the materials or information available on the Service; alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available; use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Aaptiv or obtained from the Service; provide any false personal information to Aaptiv; create a new account with Aaptiv, without Aaptiv’s express written consent, if Aaptiv has previously disabled an account of yours; solicit or collect personal information from other Users; disclose personal information about a third person on the Service or obtained from the Service without the consent of that person; use the Service to send emails or other communications to persons who have requested that you not send them communications; use the Service, without Aaptiv’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming; or violate any applicable federal, state, or local laws or regulations or the terms of this EULA.
8. External Sites. The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). Aaptiv does not endorse any External Sites or the content made available on such External Sites. Aaptiv is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You agree that Aaptiv will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites.
9. Feedback. While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments, and suggestions. If you choose to contribute by sending Aaptiv any ideas (“Feedback”), then regardless of what your accompanying communication may say, the following terms will apply. Accordingly, by sending Feedback to Aaptiv, you agree that: a. Aaptiv has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; b. Feedback is provided on a non-confidential basis, and Aaptiv is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and c. You irrevocably grant Aaptiv perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. Aaptiv respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same.
b. Repeat Infringer Policy. Aaptiv’s intellectual property policy is to (i) remove or disable access to material that Aaptiv believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Aaptiv considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Aaptiv has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Aaptiv has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Aaptiv’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “ Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Aaptiv with the user alleged to have infringed a right you own or control, and you hereby consent to Aaptiv making such disclosure. Your communication must include substantially the following: i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed; ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works; iii. Identification of the specific 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 Aaptiv to locate the material; iv. Information reasonably sufficient to permit Aaptiv to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
d. Designated Agent Contact Information. Aaptiv’s designated agent for receipt of Notifications of Claimed Infringement (the “ Designated Agent”) can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail: Aaptiv – One WTC, 49A, New York, NY 10007
e. Counter Notification. If you receive a notification from Aaptiv that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Aaptiv with what is called a “ Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Aaptiv’s Designated Agent through one of the methods identified in Section 10.d and include substantially the following information: i. A physical or electronic signature of the subscriber; ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which Aaptiv may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.d above or an agent of such person.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Aaptiv in response to a Notification of Claimed Infringement, then Aaptiv will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Aaptiv will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Aaptiv will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Aaptiv’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Aaptiv’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications . The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Aaptiv] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
Aaptiv reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution.
a. General. You and Aaptiv agree that any dispute arising out of or in any way related to this EULA or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA, will be resolved by binding arbitration. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND AAPTIV ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Notwithstanding Section 11.a above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Aaptiv will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Aaptiv’s address for Notice is: Aaptiv – One WTC, 49A, New York, NY 10007, Attn: General Counsel. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Aaptiv may commence an arbitration proceeding.
e. No Class Actions. YOU AND AAPTIV AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Aaptiv agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
f. Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Aaptiv makes any future change to this arbitration provision, other than a change to Aaptiv’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Aaptiv’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Aaptiv.
g. Enforceability. If Section 11.f above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
12. Physical Activity Disclaimer. If you have any medical conditions or are thinking about starting an exercise program or engaging in strenuous or unusual physical activity, you should consult your doctor first. Without limitation of any other terms in this EULA, we do not make any representations or warranties that the app is intended to and/or does diagnose, treat, cure, or prevent any allergies or other medical disorders or conditions, and you hereby acknowledge this disclaimer and that we are not engaged in providing you with a medical device, medical advice and/or healthcare services by providing you with access to the app. We are not responsible in any way for any health problems or injuries, including, without limitation, incapacity or death, which may result from or be related to your use of or inability to use the App.
13. Limitation of Liability and Disclaimer of Warranties.
a. AAPTIV, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “ AAPTIV PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE. THE AAPTIV PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO ANY USER, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE AAPTIV PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO AAPTIV PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE AAPTIV PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY AAPTIV PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH AAPTIV PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AAPTIV’S LIABILITY, AND THE LIABILITY OF ANY OTHER AAPTIV PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
14. Third Party Disputes.
a. To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the service, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party, and you irrevocably release the Aaptiv parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
b. The owners of any content licensed to Aaptiv for use on the Service are intended beneficiaries of this EULA and shall have the right to enforce this EULA against you for any unauthorized use of their content in any court of competent jurisdiction. The provisions of Section 11 do not apply to any dispute between you and a third party licensor of content to Aaptiv.
15. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Aaptiv Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use, or misuse of Aaptiv Content or the Service; or (c) your User Content. Aaptiv will provide notice to you of any such claim, suit, or proceeding. Aaptiv reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Aaptiv’s defense of such matter at your expense.
16. Term and Termination of the EULA.
a. Term. As between you and Aaptiv, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Aaptiv.
b. Termination. You may terminate this EULA by sending written notification to Aaptiv at firstname.lastname@example.org, deleting the App from your mobile device, and terminating all other uses of the Service. Aaptiv reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA. Aaptiv may further terminate this EULA for any other reason upon ten (10) days’ notice to you using the email address associated with your account credentials. Aaptiv reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Sections 1, 3.b, 5.b, 5.c, 6.d, 6.e, 6.f, 7, 9 – 11, 15, 16.c, and 17 – 20 and all defined terms used therein will survive the termination of this EULA indefinitely.
18. Miscellaneous. This EULA is governed by the substantive laws of the State of New York without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York County, New York. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Aaptiv as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Aaptiv other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Aaptiv to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Aaptiv unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Aaptiv and you, this EULA constitutes the entire agreement between you and Aaptiv with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Aaptiv. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App and any Aaptiv Content from your device prior to such disposition. Aaptiv may assign this EULA, including all its rights hereunder, without restriction.
19. Contact Us. You may contact us in connection with your use of the Service by mail at Aaptiv, One WTC, 49A, New York, NY 10007, and by email at email@example.com.
20. Open Source Software. The App contains certain open source software. Each item of open source software is subject to its own applicable license terms.
NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Aaptiv only, not with Apple, and Apple is not responsible for the App or the content thereof. 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, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by 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. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby 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. If Aaptiv provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.
NOTICE REGARDING SAMSUNG: Samsung is a third-party beneficiary of this EULA and may enforce the EULA against you.