Date of Last Update: November 18, 2016
Activbody, Inc. (“Activbody,” “us,” “we”) designs products and devices that enable every day mobile fitness and exercise. These Terms of Service (the “Terms”) govern your use of Activbody’s personal fitness and electronic body monitoring products, our websites, including www.activbody.com and www.activ5.com, the software embedded in our devices, our mobile applications, memberships and other Activbody services (collectively, the “Activbody Services”).
You must accept these Terms to create an Activbody account and to use the Activbody Services. If you do not have an account, you accept these Terms by visiting www.activbody.com or www.activ5.com, or using any part of the Activbody Services. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.ACTIVBODY.COM OR WWW.ACTIV5.COM OR USE THE ACTIVBODY SERVICES.
Terms May Change
These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.activbody.com and/or www.activ5.com. We will notify you by email, through the Activbody Services, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. Your use of the Activbody Services after a modification is posted is your acceptance of the modified Terms of Service.
Who Can Use Activbody?
An Activbody account can only be opened by an Adult. You are solely responsible whether and how your child or children use the Activbody Services, as well as whom, if anyone can view your child’s or children’s progress using Activbody Services.
PLEASE NOTE THAT: Activbody Services are not suitable for children under the age of 6 and children under the age of 16 need adult supervision. You must be 18 years old or older to purchase products or services from Activbody, Inc.
You may connect to the Activbody Services using a device that is manufactured, distributed, or sold by or on behalf of Activbody; the Activbody mobile applications; approved third-party applications; or www.activbody.com or www.activ5.com (“Authorized Connections”). You may not connect to the Activbody Services with: (i) any device that is not manufactured, distributed, or sold by or on behalf of Activbody (such as a knock off or counterfeit version of an Activbody device); or (ii) any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your Activbody account and your ability to access the Activbody Services. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact [email protected]
Creating an Account
Full use of the Activbody Services requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. Activbody is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the Activbody Services. These communications are part of the Activbody Services and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
Full use of the Activbody Services is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Activbody Services and it is your responsibility to ensure your equipment’s functionality.
Posting Content on the Activbody Services
You may accumulate and post various content to the Activbody Services, including exercise regimens and data, photos, food logs, recipes, comments and other content (“Your Content”). You retain all rights to Your Content that you accumulate and post to the Activbody Services. By making Your Content available on or through the Activbody Services, you hereby grant to Activbody a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content in connection with operating and providing the Activbody Services (“Your License”).
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us Your License. You also represent and warrant that Your Content and the use and provision of Your Content on the Activbody Services will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You also agree that Your Content will comply with the following Activbody Services guidelines:
- Be respectful of the opinions of others. Even though you might not agree with someone, that doesn’t mean they are wrong or deserve to be belittled. Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return.
- Do not post profane or explicit content.
- Do not post pictures that might be considered inappropriate.
- Do not post communications that could be interpreted as threatening or harassing.
- Do not post, advertise, or promote products or services commercially.
Activbody’s Rights and Intellectual Property
For purposes of these Terms, “Activbody Content” means and includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Activbody Services to you. Except for Your Content, the Activbody Content, the Activbody Services and its underlying technology are protected by copyright, trademark, patent, intellectual property and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Activbody Services.
The Activbody Services
The Activbody Services are intended for your personal, non-commercial use. Activbody grants you a limited, non-exclusive, non-transferable, non-sublicensable license to: (1) access and view the Activbody Content; (2) access and use the software and mobile applications provided by the Activbody Services (subject to their license agreements); and (3) use the software that is embedded into Activbody devices as authorized in these Terms (subject to its license agreement). This license is provided solely for your personal use and enjoyment of the Activbody Services as permitted in these Terms. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Activbody Content, Activbody Services or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Activbody or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Activbody Services:
(1) use, display, mirror or frame the Activbody Services or any individual element within the Activbody Services, Activbody’s name, any Activbody trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Activbody’s express written consent;
(2) access or tamper with non-public areas of the Activbody Services, Activbody’s computer systems, or the technical delivery systems of Activbody’s providers;
(3) test the vulnerability of any Activbody system or breach any security or authentication measures;
(4) circumvent any technological measure implemented by Activbody or any of Activbody’s providers or any other third party (including another user) to protect the Activbody Services or Activbody Content;
(5) access the Activbody Services or Activbody Content through the use of any mechanism other than through the use of an Authorized Connection, Activbody Services or Activbody API; or
(6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Activbody provides to you or any other part of the Activbody Services.
We are not obligated to monitor access or use of the Activbody Services, Activbody Content, or Your Content or to review or edit any Activbody Content or Your Content, but we have the right to do so for the purpose of operating the Activbody Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the Activbody Services, any Activbody Content, or Your Content at any time and with or without notice, and at our sole discretion, if we determine that the Activbody Content, Your Content, or your use of the Activbody Services is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Activbody Services.
The Activbody Services are Used at Your Own Risk
Our goal is to provide helpful and accurate information on the Activbody Services, but we make no endorsement, representation or warranty of any kind about any Activbody Content, information, services or recommendations.
The information provided by Activbody Services, including the Activbody Content, is for educational and entertainment purposes only, and is not to be interpreted as a recommendation for a specific treatment plan, product, or course of action. Activbody and Activbody Services do not provide specific medical advice, and is not engaged in providing medical services. Activbody Services does not replace consultation with qualified healthcare or medical professional who sees you in person, for the health and medical needs of yourself or any other person. In addition, while Activbody Services frequently updates the content it provides, medical, health and fitness information changes rapidly, and therefore, some information may be out of date. Please see a physician or healthcare professional immediately if you suspect you may be ill or injured.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Activbody Services. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any Activbody Content or the Activbody Services, you do so solely at your own risk.
Consult Your Doctor Before Using Activbody Services
The Activbody Services are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the Activbody Services, engaging in an exercise program or changing your diet. If you experience a medical emergency, stop using the Activbody Services and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Activbody Services. If you engage in any exercise program you receive or learn about through the Activbody Services, you agree that you do so at your own risk and are voluntarily participating in these activities.
Any use of the Activbody Services are subject to Activbody Disclaimers and Warnings, which are incorporated and made part of these Terms.
Use Common Sense
Use of the Activbody Services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your Activbody device or service.
Digital Millennium Copyright Act – Copyright Policy
Activbody respects other parties intellectual property rights and copyright law, and expects its users to do the same. Activbody reserves the right, in its sole discretion, with or without notice, to terminate account holders who infringe the rights of copyright holders. Please see Activbody’s DMCA/Copyright Policy, which is incorporated and made part of these Terms.
Activbody’s Terms of Sale, Return Policy and Limited Warranty apply to all purchases made through the Activbody store at www.activ5.com. All orders placed are subject to Activbody’s acceptance. We may accept, decline, or place limits on your order for any reason in our sole discretion.
Activbody is always pleased to hear from its community. However, neither Activbody, nor any of its employees, may accept or consider any unsolicited ideas, including ideas for new or improved products or services, new marketing campaigns or product or service names. Therefore, please do not submit any such unsolicited ideas in any form to Activbody or any of its employees. This policy is necessary to avoid potential misunderstandings or disputes that may arise if our new products or services or marketing campaigns were to appear similar to an idea submitted by you.
If, despite our policy, you still submit an idea to us, then regardless of anything contained in your submission you agree that the following shall apply: (i) we shall have no obligation to review the submission; (ii) the submission and its contents shall automatically become the property of Activbody without any compensation to you; (iii) we may consider the submission and its contents to be non-confidential and non-proprietary; and (iv) we may redistribute or use (for commercial purposes or otherwise) the submission and its contents for any purpose and in any way, without any compensation to you (collectively, the “Terms and Conditions”).
If you or anyone else provides us (at our request or otherwise) a comment or suggestion regarding our products or services (including our mobile applications or any of our devices) through any means, the Terms and Conditions shall apply thereto.
Contests And Giveaways
Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by Activbody and its partners. It is your responsibility to carefully review those terms and conditions.
Alerts And Notifications
As part of your use of the Activbody Services, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
Third-Party Links on the Activbody Services
The Activbody Services may contain links to third-party websites, software applications, services and resources (collectively “Third-Party Services”) that are not under Activbody’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
Changes to the Activbody Services
Activbody may change or discontinue, temporarily or permanently, any feature or component of the Activbody Services at any time without notice. Activbody is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Activbody Services. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Activbody devices without prior notice to you.
If you violate these Terms, we reserve the right to terminate and/or deactivate your Activbody account and access to the Activbody Services, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Activbody customer support. Upon any termination, discontinuation or cancellation of the Activbody Services or your account, the following provisions of these Terms will survive:
Posting Content On The Activbody Services
Activbody’s Rights and Intellectual Property
Consult Your Doctor Before Using Activbody Services
Limitation of Liability
THE ACTIVBODY SERVICES AND ACTIVBODY CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
We make no warranty that the Activbody Services or Activbody Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Activbody Services or any Activbody Content. You acknowledge and agree that if you rely on any Activbody Content or the Activbody Services, you do so solely at your own risk.
You will indemnify and hold harmless Activbody and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with: (i) your access to or use of the Activbody Services; (ii) Your Content; or (iii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation of Liability
NEITHER ACTIVBODY, ITS MANUFACTURERS and SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ACTIVBODY SERVICEs WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ACTIVBODY SERVICEs, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ACTIVBODY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL ACTIVBODY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ACTIVBODY SERVICEs EXCEED THE AMOUNTS YOU HAVE PAID TO ACTIVBODY FOR USE OF THE ACTIVBODY SERVICEs, OR ONE HUNDRED DOLLARS ($100) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ACTIVBODY, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ACTIVBODY AND YOU.
You agree that any dispute between you and Activbody arising out of or relating to these Terms, the Activbody Services, or any other Activbody products, devices or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: These Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without the need of a formal legal case. Before filing a claim against Activbody, you agree to try to resolve the Dispute informally by contacting [email protected]. We will try to resolve the Dispute informally by contacting you. If a dispute is not resolved within 30 days after submission, you or Activbody may bring a formal proceeding.
We Both Agree To Arbitrate: You and Activbody agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting [email protected] within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
Arbitration Procedures: The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Orange County, California, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Activbody will pay all arbitration fees for claims less than $25,000. Activbody will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate: Either you or Activbody may assert claims, if they qualify, in small claims court in Orange County, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Activbody products, devices or the Activbody Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with Activbody on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under our agreement.
Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Activbody agree that any judicial proceeding will be brought in the federal or state courts of Orange County, California. Both you and Activbody consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Activbody devices or products or the Activbody Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Activbody and you regarding the Activbody Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Activbody and you regarding the Activbody Services and Activbody Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Activbody’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Activbody may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Activbody under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Activbody Services at www.activbody.com and/or www.activ5.com. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Activbody’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Activbody. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional Terms May Apply
Additional terms may apply to certain Activbody devices, products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Please contact us if you have any questions about these Terms.