This User Agreement (the "Agreement") is a legal agreement between you and Pump Up Inc. ("PumpUp") respecting your use of the PumpUp application and services as described herein and on PumpUp's website. BY USING THE APPLICATION AND/OR SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this agreement, please contact us at [email protected].
1.1. "Services" has the meaning set forth in Section 2 below.
1.2. "Software" means the PumpUp application that a user can use on a computer or supported mobile device in order to utilize the Services; the Software may be downloaded or accessed on the Internet.
2. The Services
2.1. PumpUp will provide users with the ability to create personalized workouts, taking into account their fitness level, available facilities, and desired goals, by providing graduated exercise plans through the Software (the "Services"). PumpUp will collect data related to your workout input and patterns for future use in progressing workouts and providing Services to you. The Services are provided subject to the terms and conditions of this Agreement; they are currently provided with a thirty (30) day free trial period, but PumpUp reserves the right in its discretion to change its fee structure for the Services and/or any additional features of the Services at any time.
2.2. In order to use the Services, you must:
(a) provide up-to-date, complete and accurate registration information;
(b) provide up-to-date, complete and accurate credit card information for a credit card that is valid and legally registered to you, or otherwise pay in full or guarantee payment for the Services; and
(c) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agree that PumpUp may rely on the accuracy of the information provided by you to PumpUp, and that PumpUp will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to PumpUp.
2.3. PumpUp may provide you with certain information to allow you to use the Services, such as a user ID and a password or the ability to create a user ID and/or password (the "Access Information"). The Access Information is provided on the understanding that it is personal to you; you will not permit anyone other than you to obtain access to the Services using the Access Information. PumpUp is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using your Access Information, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.
2.4. As a feature of the Services, PumpUp offers users the ability to interact with other users on PumpUp's proprietary network, such as by following friends' workouts, "liking" other users' workouts, and commenting on exercises and workouts. PumpUp also offers the ability for users to publish their workouts and other personal data created through the Services on certain supported third party social networking sites and/or social media applications, such as Facebook. You acknowledge that by using these features:
(a) you must provide up-to-date, complete and accurate information, including user ID and password where required, respecting the third party social networking and/or media application accounts, blogs, twitters, tweets and other messaging and update services (supported by PumpUp) that you would like PumpUp to integrate as part of the Services;
(b) you consent to PumpUp disclosing and publishing your workout and personal information in the manner that you have indicated through these features;
(c) you acknowledge and agree that you are solely responsible for any information you post or otherwise make available on or through the Service, including these features, and that these features are provided "AS IS", without any warranty or liability whatsoever on the part of PumpUp; and
(d) you are solely responsible for complying with the terms and conditions of any third party social networking sites, social media applications, blogs, twitters, tweets and other messaging and update services on which you post information through the Services and these features, and acknowledge that such information, once posted, is subject to such third party's data collection and privacy policies, over which PumpUp has no control, and for which PumpUp shall in no event be liable.
2.5. PumpUp reserves the right to change, suspend or discontinue the Services at any time, including the availability of any feature or content, account access, or any promotion offered by PumpUp. PumpUp may also impose limits on the Services and/or terminate or restrict your access to parts or all of the Services without notice or liability.
3. Your Use of the Services
3.1. It is your responsibility to evaluate the usefulness of the Services and any exercises contained therein, in light of your personal fitness level, medical history and physical limitations. The Services are provided "AS IS" and at your own risk, and you assume full responsibility for any risk of bodily injury, death or property damage arising out of or related to your use of the Services, whether to you or to any other person or entity, including, without limitation, arising out of your performance of the exercises, whether correctly or incorrectly. You therefore hereby release, waive, discharge, and covenant not to sue PumpUp, its officers, directors, employees, contractors, or any other person or entity in any way associated with PumpUp, from any and all liability, including, but not limited to, liability for negligence for any personal injury or property damage you might suffer, and for any wrongful death action which your heirs and/or your estate might bring arising from your use of the Services.
3.2. It is your responsibility to follow the exercise instructions correctly and take the appropriate precautions; however, the content on PumpUp is not intended to be a substitute for the services of trained professionals in any field, including, but not limited to, medical matters. Always seek the advice of your physician with any questions you may have regarding your physical or mental health and wellness. If you think you may have a medical emergency, call your physician or 911 immediately. PumpUp shall in no event be liable for any claims relating to reliance on the Software or Services, or for any claims relating to medical conditions or injuries.
3.3. The Services are designed and intended for adult usage. If you are under 18 years of age, you must consult your physician before engaging in any of the exercises contained in the Services to determine whether they are appropriate for your age and stage of physical development. Additionally, if you are under the age of 18, you must obtain the consent of your parent or guardian respecting your entry into this Agreement and use of the Services. By using the Services, you are representing and warranting that you have the full right to enter into this Agreement and have obtained all required permissions.
3.4. You agree that:
(a) You will not permit anyone other than you, as an individual, to obtain access to the Services through your PumpUp account or otherwise using your Access Information, and will only use the Services in accordance with this Agreement and applicable law;
(b) You will be solely responsible for all activities with respect to the Services undertaken by you;
(c) You will not use the Services for any commercial purposes or for the benefit of any third party;
(d) You represent and warrant that you have the right and the authority to enter into this Agreement and to use the Services, and will provide accurate information to PumpUp;
(e) You will not in any way use the Services to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts;
(f) You will not alter, modify, delete, or otherwise interfere with or in any manner compromise the Services or Software or any content accessible through the Services;
(g) You will cooperate with PumpUp and provide information requested by PumpUp to assist PumpUp and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
Without limiting the foregoing, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.
4. The Software
4.1. PumpUp hereby grants you a personal, non-exclusive, revocable, non-transferable license to use the Software in accordance with the terms of this Agreement, solely for the purposes of using the Services.
4.2. You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Software or any part thereof;
(b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party on a temporary or permanent basis;
(c) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software (including without limitation any copyright notice);
(d) copy any written materials accompanying any portion of the Software unless specifically authorized in writing to do so by PumpUp; or
(e) use the Software in any way inconsistent with the use parameters for the Services;
For the purposes of this provision "copy or reproduce" shall not include copying of statements and instructions of the Software during program execution when used in accordance with and for the purposes described in the user documentation or in the course of making backups of the computer or system on which the Software is installed, in accordance with industry standard business practices.
4.3. You hereby represent and warrant that (i) you are not located in a country that is subject to a Canadian or U.S. Government embargo, or that has been designated by the Canadian or U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any Canadian or U.S. Government list of prohibited or restricted parties.
5. Fees for Services
5.1. You agree to pay all applicable fees in connection with the Services selected by you. You authorize PumpUp to automatically charge you for any and all fees incurred by you for Services. PumpUp reserves the right to change its price list and to institute new charges at any time upon notice to you, which notice may be provided by means of updates on PumpUp's website. Your use of the Services following such changes constitutes your acceptance of any new or increased charges.
5.2. Where your credit card or other payment method is rejected for any reason, you will also be responsible for any fees and charges associated with such rejection. The foregoing shall not limit PumpUp's ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable hereunder, and you shall also be responsible for paying for all reasonable fees and costs incurred by PumpUp, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
5.3. In addition to any other rights and remedies available to PumpUp, PumpUp shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment.
6. Privacy and Confidentiality
7. Intellectual Property Rights
7.1. You acknowledge that the Software is owned by PumpUp, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software, the Services, or any part thereof. Your only rights to the Software, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.
8. Disclaimer of Warranties
8.1. The software and services are provided to you "AS IS" without warranty or conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability and fitness for a particular purpose, title, non-infringement, security or accuracy. PumpUp assumes no responsibility for any errors, omissions or inaccuracies whatsoever in the information provided through the services or software. Under no circumstances will PumpUp be liable for any loss or damage caused by your reliance on information obtained through use of the services or the software. It is your responsibility to evaluate the accuracy, completeness and usefulness of any information provided, and use of the services and software is solely at your own risk. PumpUp has no special relationship with or fiduciary duty to you, and you acknowledge that PumpUp has no control over, and no duty to take any action regarding any acts or omissions taken by you or any other user of the Services, including without limitation: (a) your implementation of any exercises provided through the Services, (b) what material you or other users access on or through the Services, or (c) how you or any other user may interpret or use materials accessed through the Services. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
9. Limitation of Liability
9.1. The only type of damages that can be recovered against PumpUp arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, arising from PumpUp's gross negligence or wilful misconduct. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Software is to uninstall and cease use of such Software.
9.2. Except for the limited direct damages specified above, to the maximum extent permitted by law, in no event shall PumpUp be liable for any damages whatsoever (including, without limitation, indirect, special, incidental, exemplary or consequential or punitive damages) whether or not such damages were foreseen or unforeseen including without limitation the use of or inability to use the software or services, even if PumpUp has been advised of the possibility of such damages.
10.1. You agree to indemnify, defend and hold harmless PumpUp, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your access to the Services, the Software, and any content obtained by you through the Services or Software, (b) your use or misuse of the Services and/or Software, (c) any breach of this Agreement by you, or (d) your violation of any third-party rights or any applicable laws. PumpUp reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with PumpUp, at your expense, in asserting any available defences.
11.1. You may terminate this Agreement at any time upon notice to PumpUp. Upon any termination of this Agreement for any reason (whether by you or by PumpUp), you must cease all use of the Services and Software and destroy and/or permanently delete all copies of the Software in your possession.
11.2. PumpUp reserves the right, in its sole and complete discretion, to revoke your authorization to use the Services at any time with or without cause, for any reason or no reason. Upon termination of your account, your right to use the Services, access any accounts through the Services, and any materials obtainable through the Services will immediately cease. Any fees paid by you are non-refundable. All restrictions contained in this Agreement shall survive the termination of your right to use the Services.
11.3. Without limiting other remedies, PumpUp may limit your activity, warn other users of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and refuse to provide Services to you if: (a) you breach this Agreement; (b) PumpUp is unable to verify or authenticate any information you provide; or (c) PumpUp believes that your actions may cause financial loss or legal liability for you, other users or PumpUp.
11.4. The above-described actions are not PumpUp's exclusive remedies and PumpUp may take any other legal, equitable or technical action it deems appropriate in the circumstances. PumpUp will not be liable for any damage caused by the termination of this Agreement.
12. General Provisions
12.1. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.
12.2. This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.
12.3. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
12.4. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
12.5. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Software. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to use Software or Services of this type, you may not enter into this Agreement and you may not download, install or use the Software. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Software and Services is allowed.
13.1. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to PumpUp or its business, please contact PumpUp at:
151 Charles Street West, Suite 100, The Tannery
Kitchener, Ontario Canada N2G 1H6
Phone: (226) 339-1236
Email: [email protected]