Pilates Metrics Terms of Service and End User License Agreement
Last Updated June 30, 2016; Version 1.02
THIS AGREEMENT INCLUDES MANDATORY ARBITRATION OF DISPUTES INSTEAD OF A TRIAL BY JURY. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. SEE SECTION 21.
- ACCEPTANCE OF TERMS
Pilates Metrics provides our services through the Pilates Metrics iPad App and the website pilatesmetrics.com (collectively, the “Service”) subject to the following Terms of Service and End User License Agreement (the “TOS”, “TOU”, or “Agreement”). We may update the TOS by posting a new version on our website and in any applicable mobile applications governed by this TOS. Your continued use of the Service after any such update constitutes your binding acceptance of such changes.
THIS TOS IS A LEGAL AGREEMENT BETWEEN YOU AND PILATES METRICS AND NOT WITH APPLE OR ANY OTHER THIRD PARTIES. BY USING THE SERVICE YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS TOS. IF YOU DO NOT WISH TO ACCEPT THE TOS, DO NOT USE THE SERVICE.
- DESCRIPTION OF SERVICE
Pilates Metrics offers the Service on its website or as an iPad application that can be used by Pilates instructors.
- YOUR REGISTRATION OBLIGATIONS
You must be a Pilates instructor, an entity employing Pilates instructors, or an entity training Pilates instructors to register for the Service. You may only use the Service in accordance with the TOS. By registering as a user of the Service, you represent and warrant that you are truthfully representing your identity and the identity of any listed clients and instructors. You agree to provide accurate, current and complete information about yourself (such information being the “Registration Data”) and maintain and promptly update the Registration Data to keep it accurate, current and complete. You also agree that any instructors, users, or clients inputted under your studio account or your instructor account must be accurate and current. Please be advised that Pilates Metrics is using this App to generate meaningful statistics for the Pilates industry. If you provide any information that is fraudulent, grossly inaccurate, or grossly incomplete (or Pilates Metrics has reasonable grounds to suspect that such information is fraudulent, grossly inaccurate or grossly incomplete) Pilates Metrics may, at its sole discretion, deny you access to the Service.
When you register as a user of the Service, you must provide a valid email address and supply a user name and a password to be used in conjunction with your account. You are responsible for maintaining the confidentiality of your user name and password, and are fully responsible for all uses of your user name and password, whether by you or others. You agree to (a) keep your user name and password confidential and not share it with anyone else; (b) immediately notify Pilates Metrics of any unauthorized use of your user name, password or account or any other breach of security; and (c) use only your user name and password to access the Service. Pilates Metrics will not be liable for any loss or damage arising from your failure to comply with this section. You acknowledge and agree that Pilates Metrics is authorized to act on instructions received through use of your account credentials, and that Pilates Metrics may, but is not obligated to, deny access or block any transaction made through use of your account credentials without prior notice if we believe your account credentials are being used by someone other than you, or for any other reason.
You acknowledge, consent and agree that Pilates Metrics may access, preserve and disclose your account information and content of communications monitored by the Service if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary: (i) to comply with legal process; (ii) to enforce the TOS; (iii) to respond to claims that any content violates the rights of third parties; (iv) to respond to your requests for customer service or (v) to protect the rights, property, or personal safety of Pilates Metrics, its users, third parties, or the public. You also acknowledge, consent, and agree that we may disclose to law enforcement officials, suicide prevention agencies, and other public service personnel your account information and content of communications monitored by the Service if we have a good faith belief that circumstances require such disclosure to protect your or others life, health, or safety; however, we are not required to make such a disclosure and shall have no liability or responsibility if we fail to make such notification.
- CLIENT CONSENT
- LICENSE GRANTED TO USER
Subject to the terms and conditions of this TOS as well as Apple iTunes Terms and Conditions (available at: http://www.apple.com/legal/internet-services/itunes/appstore/jm/terms.html), Pilates Metrics hereby grants You a revocable, non-exclusive, non-transferable license to install and use the application that is provided with the Service on tablets that You own or that You otherwise have license to use.
- LICENSE GRATED TO PILATES METRICS FOR CONSUMER DATA
- USER-POSTED EXERCISE ROUTINES
Your Warranty to Pilates Metrics: By posting any exercise materials (or requesting Pilates Metrics to post materials), exercise descriptions, apparatus, sequences, or any other content to the Services (collectively, referred to as “Content”), You hereby certify that You are legally permitted to post such Content. You hereby certify that Your posting of any Content does not infringe on the copyright, trademark, trade secret or other intellectual property or proprietary right of another. You represent that you own or have the necessary licenses, rights and permissions to display, post, upload or use, and to authorize Pilates Metrics to display, post, upload or use any and all Content posted.
Your Rights to the Content: You retain all rights and ownership in Your Content. Pilates Metrics does not claim any ownership rights in Your Content.
You Grant Pilates Metrics a License to Your Content: Even though Pilates Metrics does not claim ownership of Your Content, we do need certain licenses to Your Content in order to operate, enable, promote or improve the Service. When You upload or submit Content to the Service, You grant Pilates Metrics a worldwide license to communicate, distribute, host, make modifications or derivative works (for the purpose of better showcasing Your work or increasing the effectiveness of a routine), publicly display, publicly perform, publish, reproduce, store and use such Content.
- REPRODUCTION OF THE SERVICE
You may not sell the Service or bundle it for redistribution with other applications. You may not make or distribute copies of the Service for commercial use, whether in conjunction with any third party applications, software or otherwise. Any copy that you make of the Service, in whole or in part is the property of Company. You agree to reproduce and include in their entirety all copyright, trademark and other proprietary rights notices on any copy or any portion thereof of the materials you receive under this TOS.
- LICENSE LIMITATIONS
Any use of the Service in violation of the License limitations will be regarded as an infringement of Pilates Metrics copyrights in and to the Service. You agree that you will not, under any circumstances: (i) modify, create derivative works from, adapt, or translate any part of the Service; (ii) reverse engineer, decompile, or disassemble any part of the Service; (iii) offer for sale, sell, distribute, re-distribute, assign, rent, lease, sublicense or otherwise transfer any part of the Service; (iv) insert or allow the insertion of any virus, Trojan horse or other disabling or disrupting item of code; (v) use the Service for any commercial purpose beyond exercise instruction with individual clients and related advertising for this purpose; (vi) attempt to use the Service for a fraudulent or illegal purpose; (vii) install the Service on, or use it to access or examine any computer or device or data from any computer or device, that you do not have the unequivocal legal right to access or examine; or (viii) otherwise use the Service in a manner not expressly authorized under the TOS.
- RESERVATION OF RIGHTS
Pilates Metrics reserves all rights not expressly granted pursuant to this TOS. This TOS is not a sale of the Service, any copies or part thereof, or any other applications, and you shall have no title to or ownership in the Service, or any copies or part thereof, regardless of the form on which the original and any copies may exist. We reserve the right to offer upgrades to the Service, either for a fee or without cost, at our sole discretion.
- PROPRIETARY RIGHTS
The Service contains valuable trade secrets of Pilates Metrics. All title, ownership and intellectual property rights in and to the Service are owned by Pilates Metrics or its licensors. You agree not to decompile, disassemble, analyze, or otherwise reverse engineer the Service. You acknowledge and agree that the Service contains proprietary and confidential information that is protected by United States and international copyright laws. Further, the names, marks, brands, logos, designs, trade dress and other designations Pilates Metrics uses in connection with the Service are proprietary to Pilates Metrics. Except as stated above, this TOS does not grant you any intellectual property rights in the Service other than a license to use the Service for the duration of your Service contract term.
- PATCHES AND UPDATES
Pilates Metrics may deploy or provide patches, updates, and modifications to the Service that must be installed in order to continue providing the Service. Pilates Metrics may update the Service remotely without the knowledge of the user, and you hereby grant to Pilates Metrics your consent to deploy and apply such patches, updates, and modifications on any device on which you have installed the Service. You acknowledge that neither Apple nor any third parties have any obligation whatsoever to furnish any maintenance or support services with respect to the Service.
- CODE OF CONDUCT
You agree that you will not use the Service to:
- Collect or store personal information about Clients or other users of the Service without their express consent;
- Stalk, blackmail, bully, abuse, threaten, or otherwise harass another;
- Post, email, transmit, upload, or otherwise make available content that contains any other party’s intellectual property unless you have the right to do so;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
- Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Post spam or other advertisements or solicitations, solicit funds, promote commercial entities, or otherwise engage in commercial activity;
- Harvest or collect any personal information of any clients, including without limitation email addresses;
- Post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- Use any robot, spider, scraper, or other automated means to access and/or use the Service;
- Intentionally or unintentionally violate any applicable local, state, national or international law;
- Violate the Apple iTunes Usage rules, referenced above at Section 6 of this TOS.
Violation of our rules may result in the removal of your content from the Service and/or the canceling of your account.
- MODIFICATIONS TO SERVICE
Pilates Metrics reserves the right at any time to modify or discontinue, temporarily or permanently, the Service or the methods used to provide the Service with or without notice. You agree that Pilates Metrics shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service.
You agree that Pilates Metrics may, in its sole and absolute discretion and without notice or liability to you or any third party, immediately terminate your access to the Service. Grounds for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other agreements or guidelines, (b) requests by law enforcement or government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification of the Service (or any part thereof), (e) unexpected technical or security issues or problems, and (f) extended periods of inactivity. Termination of your account(s) may include (a) removal of access to the Service, (b) at Pilates Metrics’ sole discretion, the deletion of all of your Service profile information and other content associated with your Service account (or any part thereof), and (c) barring your further use of the Software and Service.
The Service may provide links to other World Wide Web sites, applications or resources. Because Pilates Metrics has no control over such sites, applications and resources, you acknowledge and agree that we are not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites, applications, or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site, application or resource.
- DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
- Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “as available” basis. Pilates Metrics expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, accuracy, and non-infringement. Pilates Metrics assumes no responsibility for the timeliness, deletion, or failure to identify, monitor, record, or alert you or your contacts of your location, an emergency situation or otherwise.
- Pilates Metrics cannot guarantee the functionality of the Service at all times since reliability of service depends on numerous predictable and unpredictable factors. Company is not responsible for: (i) any malfunction of the hardware (mobile phone, tablet computer, or any laptop or desktop computer, web servers, storage hard disks, data transmission towers or any hardware devise involved with the Service); (ii) malfunction of software (compatibility problems, application crashes, OS crashes, software bugs, malfunction of transmission of data via cellular carrier software): (iii) hacking attacks, any malicious attack to servers and databases; (iv) downtime of web service provider; and (v) malfunction and failure of web servers and databases.
- Any content downloaded or otherwise obtained through the Service is downloaded and used at your sole discretion and risk and you will be solely responsible for any damage to your computer system, device or equipment or loss of data that results from the download or use of any such content.
- No advice or information, whether oral or written, obtained by you from Company or through or from the Service shall create any warranty not expressly stated in the TOS.
- The Service is designed to help enhance the Pilates experience for instructors and Clients. Company makes no guarantee or warranty that the Service will be safe or effective, or will have any other consequence for your business or Pilates instruction. In no event shall Company be liable for any lost revenues or profits, or other special, incidental, or consequential damages arising with respect to the Service.
- In the event of any failure of the Service to conform to any applicable warranties, if you purchased the Service through the Apple App Store or other Apple platforms, you may notify Apple, and Apple will refund the purchase price for the Service to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
You shall defend, indemnify and hold harmless Pilates Metrics, its officers, directors, contractors, agents, employees and assigns, from any and all claims or causes of action arising out of your use of or related to the Service, and pay any and all damages and expenses (including but not limited to attorney’s fees incurred by Pilates Metrics and/or third parties) in connection therewith. Pilates Metrics reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You shall cooperate with Company in asserting any available defenses.
- LIMITATION ON LIABILITY
YOU UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Company SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Company HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) the INSTALLATION OR USE OF THE SERVICE TO access OR EXAMINE data on any computer FOR WHICH YOU DO NOT HAVE THE unequivocal legal right to access; or (iv) ANY OTHER MATTER RELATING TO THE SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, Company’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO Company FOR THE SERVICE DURING THE TERM OF YOUR REGISTRATION FOR THE SERVICE.
- EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
Company may provide you with notices, including those regarding changes to the TOS, by email, regular mail, or postings on the Service; provided, however, that this Section places no requirements on Company not already expressly set forth herein.
- TRADEMARK AND SERVICEMARK INFORMATION
Pilates Metrics and other names, logos and marks are the trademarks and service marks of Company (the “Company Marks”). You agree that you will not display the Company Marks, or use the Company Marks in any manner, without the prior written permission of Company.
- DISPUTES; ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
Any controversy or claim arising out of or relating to the TOS, with the exception of those controversies or claims specifically excluded below, shall be determined by arbitration at a neutral location within the United States convenient to both parties before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, without first seeking or obtaining any decision in arbitration (even if a similar or related matter has already been referred in arbitration in accordance with the terms of this paragraph), (i) Company and its affiliates and licensors may bring any claim or suit for the purpose of evidencing, enforcing, registering or defending their intellectual property rights in any court or forum of competent jurisdiction; and (ii) Company and its affiliates and licensors shall be entitled to seek injunctive and other equitable relief in any court or forum of competent jurisdiction to enforce this TOS.
You and Company agree that any arbitration shall be limited to the dispute between Company and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is not right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
You and Company agree that the following disputes are not subject to this binding arbitration provision: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or Company’s intellectual property rights; and (2) any claim for injunctive relief.
For any dispute not subject to arbitration, or where no election to arbitrate has been made, you and Company agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in the state of California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. The TOS and the relationship between you and Company shall be governed by the laws of California without regard to its conflict of law provisions.
- PLANS AND PRICING; FEES
You agree to pay all fees for the Service provided to you pursuant to this Agreement, and any contract that You negotiate with Pilates Metrics. You agree to provide payment according to the terms of any contract that You negotiate with Pilates Metrics. If you choose to purchase a plan for the Service that includes a monthly fee, Company may process these fees through Apple. In such case, You must have a valid credit or debit card, that you use with your applicable Apple Pay account or suspension of any paid Service may occur. If your credit card or debit card is declined, your paid Service account may be blocked or terminated.
- Digital Millennium Copyright Act
We respect the intellectual property rights of others and require those that use the Service do the same. We may, in appropriate circumstances and at our discretion, remove or disable access to material on the Service that infringes upon the copyright rights of others. We also may, at our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In the event that any visitors to our websites or users of our Service repeatedly infringe on others’ copyrights, we may in our sole discretion terminate those individuals’ rights to use the Service.
If you believe that your work has been used on the Service in any manner that constitutes copyright infringement, please notify Company’s copyright agent by written notice. The notice should include the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed;
- A description of the copyrighted work you claim has been infringed, including a copy of the copyrighted work or the web page address where the copyrighted work may be found;
- Identification of the location on the Service of the material you claim has been infringed, or the link or reference to another website that contains the material you claim has been infringed;
- Your name, address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use of the material at issue is not authorized by the copyright owner, the agent of the copyright owner or the law; and
- A statement by you that the information in this notification is accurate and a statement, under penalty of perjury, that you are the copyright owner of the material allegedly infringed or authorized to act on the copyright owner’s behalf.
In order to make claims of copyright infringement on our Site, network or through the use of the Service, please send your notice as follows:
By mail: 3449 Summer Dr., Modesto, CA 95355
By email: email@example.com
By telephone: 510-301-4171
By facsimile: N/A
- GENERAL PROVISIONS
Modification of Agreement. In our sole discretion, we may unilaterally amend or modify this Agreement or any other documents referenced herein at any time by posting on the Service. The date of the most recent revision will appear at the top of this page. If we have an e-mail contact for you and the changes to the Agreement are material, we may notify you of such changes by sending you an e-mail to the address you have provided to us. We encourage you to review this Agreement periodically for any updates or changes. Any amended or modified terms will be effective upon posting or at the time set forth in an e-mail notice to you. Continued use of the Service constitutes acceptance of any modified terms and conditions. Company also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of the Service, which may be posted in the relevant parts of the Service, and will be identified clearly and conspicuously. Your continued use of the Service constitutes your agreement to comply with these additional rules.
Waiver and Severability of Terms. The failure of Company to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Third Party Beneficiaries: You agree that, except as otherwise expressly provided in this TOS, there shall be no third party beneficiaries to this TOS. Notwithstanding the above, You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the TOS, and that, upon your acceptance of the TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce the TOS against you as a third party beneficiary thereof.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Legal Compliance. 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.
Section Titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
- VIOLATIONS OR QUESTIONS
Please report any violations of the TOS or any questions to firstname.lastname@example.org