OOMPH Terms of Service
These Terms of Service were last updated on September 18, 2019.
These OOMPH Terms of Service (the "Agreement") is a binding contract between you, an individual user (such person, the “Customer, “you” or “your”) and OOMPH Fitness Inc. (“OOMPH,” “we,” “us” or “our”) governing your use of the mobile software applications that OOMPH makes available for download (individually and collectively, the “App”), the related website located at www.oomphapp.com and any other online properties owned or controlled by or on behalf of OOMPH (collectively with the App, the “OOMPH Services”) and is entered into the earlier of: (a) the date Customer first uses any part of the OOMPH Services; and (b) the date Customer agrees to be bound by this Agreement (the "Effective Date"). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE OOMPH SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OOMPH SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO OOMPH THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.
Material Terms: As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), Customer acknowledges the following:
● The OOMPH Services are licensed, not sold, to Customer, and Customer may use the OOMPH Services only as set forth in this Agreement;
● Customer uses the OOMPH Services at Customer’s sole risk, and Customer should consult with a physician or other health care professional before commencing use of the OOMPH Services;
● The use of the OOMPH Services may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
● We provide the App to Customer on an “as is” basis without warranties of any kind and OOMPH’s liability to Customer is limited;
● Disputes arising between Customer and OOMPH will be resolved by binding arbitration. By accepting this Agreement, as provided in greater detail in section 13 below, Customer and OOMPH are each waiving the right to a trial by jury or to participate in a class action law suit;
"OOMPH Services" has the meaning set out in the introductory paragraphs to this Agreement.
"OOMPH Software" means OOMPH's software product made available under the name "OOMPH", and any updates provided as part of the OOMPH Services.
"Customer Data" means any data, information, content, records, and files that Customer loads, receives through, transmits to or enters into the OOMPH Services.
"Modifications" means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and "Modify" has a corresponding meaning.
"Personal Information" means information about an identifiable individual.
"Technical Support Services" means the support services described in Section 11.
"Website" means any websites used by OOMPH to provide the OOMPH Services, including the website located at https://www.oomphapp.com.
- General Term and Conditions
- Changes to this Agreement. Customer understands and agree that we may change this Agreement at any time without prior notice. The revised Agreement will become effective at the time of posting unless specified otherwise. Any use of the OOMPH Services after the effective date will constitute your acceptance of such revised Agreement. If Customer finds any change to this Agreement or the OOMPH Services unacceptable, then your sole remedy is to stop accessing, browsing, and otherwise using the OOMPH Services.
- Jurisdictional Issues. The OOMPH Services are controlled and operated by OOMPH Fitness Inc. from its offices in the Province of Ontario, Canada. OOMPH makes no representation that materials on the OOMPH Service are appropriate, lawful, or available for use in any locations other than Canada and the United States of America. Those who choose to access or use the OOMPH Services from locations outside Canada and the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the OOMPH Services are illegal, unauthorized, or penalized is strictly prohibited.
- Eligibility. The OOMPH Services are not for persons under the age of 13 (or under 16 for individuals in the European Union) or for any users previously suspended or removed from the OOMPH Services by OOMPH. IF CUSTOMER IS UNDER 13 YEARS OF AGE (or under 16 in the EU), CUSTOMER MUST NOT USE OR ACCESS THE OOMPH SERVICES AT ANY TIME OR IN ANY MANNER. By accessing or using the OOMPH Services, Customer affirms that Customer is at least 18 years of age or Customer has been authorized to use the OOMPH Services by your parent or legal guardian who is at least 18 years of age.
3. The OOMPH Services
(a) Description. The OOMPH Services provides Customer with the opportunity to take kickboxing based fitness classes (each, a “Class”) and receiving coaching from trainers solely for your personal use. Classes are available for a variety of skill levels, for a variety of activities, and for varying durations. Classes are subject to change at any time with or without notice to you.
(b) Mobile Services. The OOMPH Services will be accessible via a mobile phone, tablet, or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, Customer is solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
(c) Provisioning of the OOMPH Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, OOMPH will make the subscribed OOMPH Services available to Customer on the terms and conditions set out in this Agreement.
(d) Restrictions on Use. Customer must not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the OOMPH Services or any intellectual property rights therein or otherwise make the OOMPH Services available to others;
- use the OOMPH Services to permit timesharing, service bureau use or commercially exploit the OOMPH Services;
- use or access the OOMPH Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the OOMPH Services, or for any purpose or in any manner not expressly permitted in this Agreement;
- use the OOMPH Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
- modify the OOMPH Services;
- reverse engineer, de-compile or disassemble the OOMPH Services;
- remove or obscure any proprietary notices or labels on the OOMPH Services, including brand, copyright, trademark and patent or patent pending notices;
- access or use the OOMPH Services for the purpose of building a similar or competitive product or service; or
- perform any vulnerability, penetration or similar testing of the OOMPH Services;
(e) Suspension of Access; Scheduled Downtime; Modifications. OOMPH may, at its discretion:
- suspend Customer’s access to or use of the OOMPH Services or any component thereof:
- for scheduled maintenance;
- if Customer violates any provision of this Agreement; or
- to address any emergency security concerns; and
- Modify the OOMPH Services.
- Customer is required to accept all patches, bug fixes and updates made by or on behalf of OOMPH to the OOMPH Services.
(a) Log-In Credentials. While Customer may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, Customer must download the App and register an account with us (an “Account”).
(b) Account Security. Customer is responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. Customer may not share the credentials for your Account with any third party. Customer agrees to notify OOMPH immediately at email@example.com if Customer suspects or knows of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. OOMPH will not be liable for any loss or damage arising from unauthorized use of your credentials prior to Customer notifying OOMPH of such unauthorized use or loss of your credentials.
(c) Accuracy of Information. When creating an Account, Customer will provide true, accurate, current, and complete information to OOMPH. Customer will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this Agreement, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of OOMPH, or violate any applicable laws or regulations. If messages sent to the e-mail address Customer provided are returned as undeliverable, then OOMPH may terminate your Account immediately without notice and without any liability
5. Subscriptions and Payment.
(a) Initial Subscription Payment. To enjoy the full benefits of the Service, including Classes, you must purchase a subscription to the Service. You will be charged the stated subscription fee and any applicable taxes and service fees upon enrollment, unless your membership starts with a free trial, as detailed below.
(b) Free Trials. If your OOMPH membership starts with a free trial period, the duration of which is specified during enrollment, WE WILL BILL YOUR DESIGNATED PAYMENT METHOD FOR THE SUBSCRIPTION FEE AT THE END OF THE FREE TRIAL PERIOD, unless you cancel prior to the end of the free trial period. By providing your payment details when enrolling in the free trial, you agree that OOMPH may charge the subscription fee to your designated payment method upon conclusion of the free trial period. Free trials are only available to first-time subscribers. OOMPH reserves the right, in its sole discretion, to determine your free trial eligibility.
(c) Automatically Renewable Subscriptions. By purchasing a subscription to the Service, you agree that, upon expiration of the initial subscription term, your subscription will automatically renew for successive periods of the same duration as the initial subscription unless and until you cancel your subscription.
(d) Cancellation. You may cancel your subscription to the Service at any time, after which OOMPH will not automatically renew your subscription. PLEASE NOTE THAT NO REFUNDS WILL BE ISSUED UPON CANCELLATION.
(e) Recurring Charges. YOU AUTHORIZE OOMPH TO CHARGE YOUR ACCOUNT USING THE PAYMENT METHOD ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. You will be billed for the same subscription plan (or the most similar subscription plan, if your prior plan is no longer available) at the then-current applicable subscription price plus any applicable taxes. We will process payment for any renewal subscription using the same billing cycle as your current subscription. Additional terms and conditions may apply upon renewal, and subscription fees may change at any time, to the fullest extent permitted under applicable law.
(f) No Refunds. PAYMENTS ARE NON-REFUNDABLE. THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. You are only eligible to cancel your subscription without incurring any payment obligation during your free trial period (if any), after which no refunds will be issued. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion.
(g) Price Changes. OOMPH reserves the right to adjust pricing at any time. At the end of any promotion, OOMPH may, at its sole discretion, revert a member’s price per period to the current standard retail pricing for that membership type. OOMPH may also discontinue certain pricing promotions at any time at its sole discretion.
6. Intellectual Property Rights.
(a) License. Subject to your complete and ongoing compliance with this Agreement, OOMPH hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your personal, non-commercial use. OOMPH reserves all rights not expressly granted to you.
(b) Content. Except for User Content, the content that OOMPH provides to end users on or through the Service, including without limitation, any Class (including the programming of such Class), text, graphics, photos, software, sound recordings and interactive features, may be protected by copyright or other intellectual property rights and owned by OOMPH or its third party licensors (collectively, the “OOMPH Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities. Your use of OOMPH Content must be in compliance with applicable law. OOMPH reserves all rights on the part of its licensors. Classes are offered for individual use only by a single user per Account and users are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights.
(c) Marks. OOMPH trademarks, service marks, and logos (the “OOMPH Trademarks”) used and displayed on the Service are OOMPH’s registered and unregistered trademarks or service marks. You may not use any Trademarks as part of a link to or from the Service without OOMPH’s prior express written consent. You may not remove any Trademarks identifying the ownership or origin of any OOMPH Content. All goodwill generated from the use of any OOMPH Trademark will inure solely to OOMPH’s benefit.
7. User Content.
(a) Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all OOMPH Content.
(b) Screening User Content. OOMPH offers end users the ability to submit User Content to or transmit User Content through the Service. OOMPH does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. OOMPH does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will OOMPH be liable in any way for any User Content.
(c) Licenses to User Content. While you retain ownership of any rights you may have in your User Content, you hereby grant OOMPH an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “ Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting OOMPH and the Service; (ii) displaying and sharing your User Content to other users of the Service; and (iii) providing the Service as authorized by this AGREEMENT. You further grant OOMPH a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content. Any User Content posted by you to or through the Service or transmitted to OOMPH will be considered non-confidential and non-proprietary, and treated as such by OOMPH, and may be used by OOMPH in accordance with this AGREEMENT without notice to you and without any liability to OOMPH.
(d) You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this AGREEMENT; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of your posting your User Content on the Service.
(e) Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
(f) Objectionable Content. You agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or (ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide) (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this AGREEMENT may be raised as a defense against such third party claims. If you encounter any Objectionable Content on the Service, then please immediately email firstname.lastname@example.org. OOMPH in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service.
8. Restrictions on Use of the Service.
In addition to any other restrictions set forth in this AGREEMENT, and without limiting those restrictions, when using the Service, you agree not to: make unauthorized copies or derivative works of any content made available on or through the Service; use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service; delete or alter any material OOMPH or any other person or entity Posts on the Service; frame or link to any of the materials or information available on the Service; alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available; use any trademarks, service marks, design marks, logos, photographs, or other content belonging to OOMPH or obtained from the Service; provide any false personal information to OOMPH; create a new account with OOMPH, without OOMPH’s express written consent, if OOMPH has previously disabled an account of yours; solicit or collect personal information from other Users; disclose personal information about a third person on the Service or obtained from the Service without the consent of that person; use the Service to send emails or other communications to persons who have requested that you not send them communications; use the Service, without OOMPH’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming; or violate any applicable federal, state, or local laws or regulations or the terms of this AGREEMENT.
9. Ownership; Reservation of Rights
(b) OOMPH or its licensors retain all ownership and intellectual property rights in and to: (i) the OOMPH Services; (ii) anything developed or delivered by or on behalf of OOMPH under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
(c) All rights not expressly granted by OOMPH to Customer under this Agreement are reserved.
OOMPH uses service availability monitoring equipment to monitor the OOMPH Services on a 24 hours a day, 365 days a year basis. Customer will generally have access to OOMPH's technical support from 10 AM to 6 PM EST Monday through Friday (excluding statutory and civic holidays observed in Canada and the United States): (i) via email at email@example.com. Customer will consult the documentation and trouble-shooting information made available by OOMPH (including on the Website) prior to contacting OOMPH for support. OOMPH reserves the right to limit Customer's access to support if Customer does not comply with these terms or uses an excessive amount of support.
12. Confidential Information
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written Agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of OOMPH, to potential assignees, acquirers or successors of OOMPH if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of OOMPH.
(d) Deletion of Confidential Information. Within 30 days of the expiration or termination of this Agreement, Customer will return or destroy OOMPH’s Confidential Information.
13. Dispute Resolution.
(a) General. Customer and OOMPH agree that any dispute arising out of or in any way related to this AGREEMENT or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this AGREEMENT, will be resolved by binding arbitration. CUSTOMER UNDERSTANDS AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND OOMPH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Notwithstanding Section 13.a above, nothing in this AGREEMENT will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Arbitrator. Any arbitration between Customer and OOMPH will be governed by the Canadian Arbitration Association Arbitration Rules (collectively, “CAAA Rules”) of the Canadian Arbitration Association (“CAA”), as modified by this AGREEMENT, and will be administered by the CAA. The CAA Rules and filing forms are available online at https://canadianarbitrationassociation.ca . The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration Agreement. The place of the arbitration shall be Toronto, Ontario, Canada.
(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by Registered Mail (“Notice”). OOMPH’s address for Notice is: OOMPH – 8966 Woodbine Ave., Suite 100, Markham, Ontario, Canada, L3R-0J7, Attn: General Counsel. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an Agreement to do so within 30 days after the Notice is received, Customer or OOMPH may commence an arbitration proceeding.
(e) No Class Actions. CUSTOMER AND OOMPH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and OOMPH agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(f) Modifications to this Arbitration Provision. Except as otherwise provided in this AGREEMENT, if OOMPH makes any future change to this arbitration provision, other than a change to OOMPH’s address for Notice, then Customer may reject the change by sending us written notice within 30 days of the change to OOMPH’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Customer rejected, will continue to govern any disputes between Customer and OOMPH.
(g) Enforceability. If Section 13.f above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
14. Physical Activity Disclaimer.
If Customer has any medical conditions or are thinking about starting an exercise program or engaging in strenuous or unusual physical activity, Customer should consult your doctor first. Without limitation of any other terms in this AGREEMENT, we do not make any representations or warranties that the app is intended to and/or does diagnose, treat, cure, or prevent any allergies or other medical disorders or conditions, and Customer hereby acknowledge this disclaimer and that we are not engaged in providing Customer with a medical device, medical advice and/or healthcare services by providing Customer with access to the app. We are not responsible in any way for any health problems or injuries, including, without limitation, incapacity or death, which may result from or be related to your use of or inability to use the App.
15. Limitation of Liability and Disclaimer of Warranties.
(a) OOMPH, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “ OOMPH PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE. THE OOMPH PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO ANY USER, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, CUSTOMER AGREE THAT CUSTOMER USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL CONTENT CUSTOMER UPLOADS TO THE SERVICE.
(b) THE OOMPH PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO OOMPH PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
(c) THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE OOMPH PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
(d) IN NO EVENT WILL ANY OOMPH PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH OOMPH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OOMPH’S LIABILITY, AND THE LIABILITY OF ANY OTHER OOMPH PARTIES, TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES CUSTOMER HAVE PAID US AND U.S. $100.
16. Third Party Disputes.
(a) To the fullest extent permitted by law, any dispute Customer has with any third party arising out of your use of the service, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between Customer and such third party, and Customer irrevocably release the OOMPH parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
(b) The owners of any content licensed to OOMPH for use on the Service are intended beneficiaries of this AGREEMENT and shall have the right to enforce this AGREEMENT against Customer for any unauthorized use of their content in any court of competent jurisdiction. The provisions of Section 11 do not apply to any dispute between Customer and a third party licensor of content to OOMPH.
To the fullest extent permitted by law, Customer agree to defend, indemnify, and hold harmless the OOMPH Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this AGREEMENT; (b) your access to, use, or misuse of OOMPH Content or the Service; or (c) your User Content. OOMPH will provide notice to Customer of any such claim, suit, or proceeding. OOMPH reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, Customer agree to cooperate with any reasonable requests assisting OOMPH’s defense of such matter at your expense.
18. Term and Termination of the AGREEMENT.
(a) Term. As between Customer and OOMPH, the Term of this AGREEMENT commences as of your first use of the Service and continues until the termination of this AGREEMENT by either Customer or OOMPH.
(b) Termination. Customer may terminate this AGREEMENT by sending written notification to OOMPH at firstname.lastname@example.org, deleting the App from your mobile device, and terminating all other uses of the Service. OOMPH reserves the right, in its sole discretion, to restrict, suspend, or terminate this AGREEMENT and your access to all or any part of the Service at any time without prior notice or liability if Customer breach any provision of this AGREEMENT. OOMPH may further terminate this AGREEMENT for any other reason upon ten (10) days’ notice to Customer using the email address associated with your account credentials. OOMPH reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
(c) Sections 2, 4.b, 6.b, 6.c, 7.d, 7.e, 7.f, 8, 17, 18.c, 19-21 and all defined terms used therein will survive the termination of this AGREEMENT indefinitely.
19. Consent to Electronic Communications.
20. Mobile Messaging Service.
The OOMPH mobile message service (the "Service") is operated by OOMPH Fitness Inc., (“OOMPH”, “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. We may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. Text messages may be sent using an automatic telephone dialing system or other technology. Your consent to receive autodialed marketing text messages is not required as a condition of purchasing any goods or services.
If you have opted in, the Service provides updates, alerts, information, promotions, specials, and other marketing offers (e.g., cart reminders) from OOMPH via text messages through your wireless provider to the mobile number you provided. Message frequency varies. Text the single keyword command STOP to cancel at any time. You'll receive a one-time opt-out confirmation text message. For Service support or assistance, text HELP or email email@example.com.
We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. You agree to maintain accurate, complete, and up-to-date information with us related to your receipt of messages, including, without limitation, notifying us immediately if you change your mobile number.
You agree to indemnify, defend, and hold us harmless from any third-party claims, liability, damages or costs arising from your use of the Service or from you providing us with a phone number that is not your own.
You agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
This AGREEMENT is governed by the substantive laws of the Province of Ontario without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the provincial and federal courts sitting in Ontario, Canada. You agree that no joint venture, partnership, employment, or agency relationship exists between you and OOMPH as a result of this AGREEMENT or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and OOMPH other than pursuant to this AGREEMENT. If any provision of this AGREEMENT is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this AGREEMENT, which will remain in full force and effect. Failure of OOMPH to act on or enforce any provision of this AGREEMENT will not be construed as a waiver of that provision or any other provision in this AGREEMENT. No waiver will be effective against OOMPH unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by OOMPH and you, this AGREEMENT constitutes the entire Agreement between you and OOMPH with respect to the subject matter hereof, and supersedes all previous or contemporaneous Agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This AGREEMENT will inure to the benefit of our successors and assigns. You may not assign this AGREEMENT or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of OOMPH. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App and any OOMPH Content from your device prior to such disposition. OOMPH may assign this AGREEMENT, including all its rights hereunder, without restriction.
22. Contact Us.
You may contact us in connection with your use of the Service by mail at OOMPH, 8966 Woodbine Ave., Suite 100, Markham, Ontario, L3R-0J7, and by email at firstname.lastname@example.org.
23. Apple App Store Additional License Terms
If the Application is provided to Customer through the Apple Inc. (Apple Inc. together with all of its affiliates, "Apple") App Store, the following terms and conditions apply to Customer in addition to all the other terms and conditions of this Terms of Service:
The parties acknowledge this Terms of Service is concluded between Customer and us, and not with Apple. The responsibility for the Application and content thereof is governed by this Terms of Service.
Notwithstanding anything else in this Terms of Service, Customer may use the Application only on or through an Apple device that Customer own or control
Customer and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Application.
In the event of any failure of the Application to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Terms of Service.
Any claim in connection with the Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Terms of Service, and Apple is not responsible for such claim.
Any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights will be governed by this Terms of Service, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.
Customer represent and warrant that Customer are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties.
Customer may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Application.
Name: OOMPH Fitness Inc. Address: 100 – 8966 Woodbine Ave., Markham, Ontario, Canada, L3R-0J7. Email Address: email@example.com
Apple is a third party beneficiary to this Terms of Service and may enforce this Terms of Service against you.
If any of the terms and conditions in this Terms of Service are inconsistent or in conflict with Apple's applicable instructions for Minimum Terms for Developer's End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple's instructions for Minimum Terms for Developer's End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.
24. Google Play
If the Application is provided to Customer through the Google Inc. (Google Inc. together with all of its affiliates, "Google") Google Play, the following terms and conditions apply to Customer in addition to all the other terms and conditions of this Agreement:
Customer acknowledge that Google is not responsible for providing support services for the Application.
If any of the terms and conditions in this Terms of Service are inconsistent or in conflict with Google's Google Play Developer Distribution Agreement as of the date this Terms of Service was accepted, the terms and conditions of Google's Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.