EXERCISE BUDDY TERMS OF USE

Last Updated [2/28/2020]

Welcome to Exercise Buddy LLC and its family of companies (collectively, "Exercise Buddy", "Us", "Our", or "We"). These Terms of Use ("Terms") are a legal contract between You and Us (collectively, "Everyone") and govern without limitation, all the text, data, information, software, graphics, photographs and more (all of which We refer to as "Materials") that We and Our affiliates may make available to You, as well as any online services that We may provide through our websites, mobile applications, and any other services we may provide from time to time ("Services"). By accessing and using the Services, you accept without limitation or qualification, all of these Terms which take effect on the date which you first use the Services. If you do not accept these Terms, you should not use our Services. We reserve the right to change these Terms at any time by posting changes online without prior notice. You are responsible for reviewing regularly information posted online to obtain timely notice of such changes. Your continued use of the Services following the postings of any changes to these Terms constitutes acceptance of those changes.

READ THESE TERMS CAREFULLY BEFORE BROWSING THE SERVICES. USING THE SERVICES INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THE SERVICES IF YOU DO NOT ACCEPT THESE TERMS.

NOTE: SECTION 16 BELOW CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF CLASS ACTION RIGHTS. BY AGREEING TO THESE TERMS, YOU AGREE TO AND ARE BOUND BY THESE PROVISIONS.

1. CHANGES. We may choose to modify, suspend, terminate or discontinue the Services, Materials or Services at any time and without notifying You. If You object to any modifications, Your sole recourse shall be to cease using the Services. Continued use of the Services indicates that You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the Services. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.

2. GENERAL USE. By registering and using the Services, You represent that You are at least 18 or older. The Services are intended for the general public and are not intended for children under 13 years old, except in accordance with the Children’s Online Privacy and Protection Act, with verifiable parental consent.

3. PASSWORD RESTRICTED AREAS OF THE SERVICES. If the Services allow for accounts, once You submit the required registration information, We alone will determine whether or not to approve Your proposed account. For so long as You use the account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. If You forget Your password – no worries as We will happily send a password update to Your provided email address.

You are responsible for complying with these Terms when You access the Services, whether directly or through any account that You may setup through or on the Services. It is Your responsibility to obtain and maintain all equipment and services needed for access to and use of the Services as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access the Services. Should You believe Your password or security for the Services has been breached in any way, You must immediately notify Us.

4. PAYMENTS. You agree to pay all applicable fees related to Your use of the Services and Our Services, if any. We may suspend or terminate Your account and/or access to Our Services and the Services if Your payment is late and/or Your offered payment method (e.g., credit card or PayPal account) cannot be processed. By providing a payment method, You expressly authorize Us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, in accordance with any authorization you provide.

We understand that You might cancel Your account, but please know that We will not provide any refund(s) or credits, and You will be responsible for paying any balance due on the account or amounts otherwise incurred. To make things less complicated, You agree that We may charge any unpaid amounts to Your provided payment method and/or send You a bill for such unpaid amounts.

5. ELECTRONIC COMMUNICATIONS. By using the Services provided, You consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services provided. These electronic communications are part of Your relationship with Us. You agree that any documents, notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing and that you are able to access those document and/or communications electronically.

6. PRIVACY POLICY. We respect the information that You provide to Us, and want to be sure You fully understand exactly how We use that information. So, please review Our Privacy Policy.

7. LINKS TO THIRD-PARTY SITES. We think links are convenient, and We sometimes provide links on the Services to third-party websites. If You use these links, You will leave the Services. We are not obligated to review any third-party websites that You link to from the Services, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from the Services, You do this entirely at Your own risk, and You are subject to the privacy policies and terms and conditions for those third-party websites, not ours. Certain areas of the Services may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure your privacy settings in that third-party website account to permit Your activities on the Services to be shared with Your contacts in your third-party site account.

8. UNAUTHORIZED ACTIVITIES. To be clear, We authorize Your use of the Services only for your own personal and non-commercial purpose ("Permitted Purposes"). Any other use of the Services beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Services. This is because as between You and Us, all rights in the Services remain Our property.

Unauthorized use of the Services may result in violation of various laws. We want to give You examples of things to avoid. Unless You have written permission from Us stating otherwise, You are not authorized to use the Services in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):

You agree to indemnify, defend and hold Us harmless if You violate these Terms and that violation results in a claim against Us and generally from any damages or other losses, costs, or expenses we incur as a result of Your use of the Services or the Materials. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.

9. INTELLECTUAL PROPERTY. The Services and the Materials, including, without limitation, their contents, text, graphics, images, logos, button icons, audio clips, and software are owned or controlled by Us or our suppliers and are protected by copyright, trademark, and other intellectual property laws. This information is a trade secret as that term is defined in the United States Trade Secret Act.In these Terms we are granting You a limited, personal, revocable, non-exclusive and non-transferable license to use the Materials solely for the Permitted Purpose. Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in any Materials or Services and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials or Services in any manner.

10. USER GENERATED CONTENT. We offer certain features that may allow You to submit, upload, post or share (either directly or by using third-party websites or platforms) images, words, pictures, data, information or any other user generated content ("User Generated Content" or "UGC"). Between You and Exercise Buddy , You are and will remain the owner of the UGC, and You represent, warrant and covenant to Us that You own all right, title, and interest, including any copyright, in and to the UGC You submit or post to Our Services and that all UGC is truthful and accurate, and shall not breach, infringe, contravene, or detrimentally affect any other party’s rights whatsoever, including intellectual property rights, and that no other party has any rights to it including so called "moral rights".

Although You retain ownership of UGC, by submitting, posting, or displaying UGC you are automatically granting, and hereby do grant Exercise Buddy , a perpetual, worldwide, non-exclusive, fully paid-up, fully transferable right and license to use (including the right to copy, display, perform, publish, modify, adapt, and translate) such UGC in all forms and media (the "Licensee"). This means that Our right to possess, use, and display the content anywhere and through any means will never expire, that We will never owe You any compensation, and that We may allow others to use or possess it as well.

You acknowledge that Exercise Buddy does not and cannot review all UGC submitted and that You and/or others who post UGC are responsible for its content. Notwithstanding the foregoing, Exercise Buddy reserves the right, but does not have an obligation to review and/or monitor all content posted or submitted on Our Services or features by users. We may also disclose any information as necessary to satisfy any law, regulation, or government request, or to edit, refuse to post, or to remove any UGC in whole or in part that in Our sole discretion are objectionable or in violation of these Terms of Use, Exercise Buddy’s policies, or applicable law. We may also impose limitations or restrict access to part or all of these features without notice or penalty if We believe You are in breach of the guidelines set forth in this paragraph, these Terms of Use, or applicable law, or for any other reason without notice or liability.

11. INTELLECTUAL PROPERTY INFRINGEMENT OF OTHERS. We respect the intellectual property rights of others. Accordingly, We have a policy of removing user submissions that violate intellectual property rights of others, suspending access to the Services (or any portion thereof) to any user who uses the Services in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Services in violation of someone’s intellectual property rights.

Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of the Services, please provide written notice to Our Agent for notice of claims of infringement:

Exercise Buddy, LLC
702 W. Burlington Ave., Suite 2E, La Grange, IL 60525
(773) 575-5100
talk@exercisebuddy.com

To be sure the matter is handled immediately, Your written notice must:

Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.

Submitting a DMCA Counter-Notification. We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:

Your physical or electronic signature;

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;

A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Termination of Repeat Infringers. We reserve the right, in Our sole discretion, to terminate the account or access of any user of the Service who is the subject of repeated DMCA or other infringement notifications.

12. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Exercise Buddy and its officers, directors, managers, members, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including attorneys’ fees, arising from or relating to Your use or misuse of the Services or Your breach of this Agreement.

13. DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY. THE SERVICES AND THE MATERIALS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE MATERIALS IS WITH YOU.

WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SERVICES AND MATERIALS, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WE DO NOT WARRANT THATTHE SERVICES OR MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THATTHE SERVICES OR MATERIALS ARE FREE OF VIRUSES OR BUGS.We make no warranty as to the results that may be obtained from the use of the SERVICES OR MATERIALS or as to the accuracy or reliability of any information obtained through the SERVICES OR MATERIALS. No advice or information, whether oral or written, obtained by You through the services or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.

There may be typographical errors or inaccuracies in the Services or Materials, which we reserve the right to correct at any time.

IN NO EVENT SHALL WE OR OUR AFFILIATES, AGENTS, REPRESENTATIVES, EMPLOYEES, OFFICERS, DIRECTORS, SUPPLIERS OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO: LOSS OF USE, DATA, REVENUE, OR PROFITS, WHETHER IN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS, USE OF, OR YOUR INABILITY TO ACCESS OR USE THE SERVICES OR MATERIALS. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY CLAIM THAT YOU MAY HAVE RELATING TO THE SERVICES OR MATERIALS IS YOUR RIGHT TO CEASE USE OF THE SERVICES AND MATERIALS.

14. LOCAL LAWS; EXPORT CONTROL. We control and operate the Services from Our headquarters in the United States of America and the entirety of the Services may not be appropriate or available for use in other locations. If You use the Services outside the United States of America, You are solely responsible for following applicable local laws.

15. FEEDBACK. Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, "Feedback") through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.

16. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER

Please Read This Provision Carefully. It Affects Your Legal Rights.

You agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury ("Arbitration Agreement"). This Arbitration Agreement is governed by the Federal Arbitration Act ("FAA") and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Madison, Wisconsin, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. You and We agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver and/or the arbitrability of a claim or dispute may only be determined by an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.

Jury Waiver. You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

Continuation. The Provision set forth in Sections 19-21 shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of the Services. Notwithstanding any provision in this Agreement to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the language in this Provision if a dispute between Us arises..

However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to the Services without prior notice to You. The Federal Arbitration Act, Illinois, state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or the Service will be heard in Cook Countyor the United States District Court for the Northern District of Illinois and you agree to the personal jurisdiction of those courts over You.If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforced any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about the Services. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

17. CONTACT US. If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at:

[talk@exercisebuddy.com]

If any of these Terms should be determined to be illegal, invalid, or otherwise unenforceable by reason of the laws of any state or country in which these Terms are intended to be effective, then to the extent and within the jurisdiction which that term is illegal, invalid, or unenforceable, it shall be severed and deleted from these Terms and the remaining Terms shall survive, remain in full force and effect and continue to be binding and enforceable.