CYBEROBICS™ Terms of Service United States

PLEASE READ THIS DOCUMENT CAREFULLY        

Last Updated: March 11, 2018

CYBEROBICS,USA LLC (the “Company”) is a part of the McFIT Global Group - a multi-product fitness company.

 

CYBEROBICS™ offers access to  a variety of workouts conducted by professional and celebrity trainers, which can be accessed via its mobile application (the “App”) or via the Company’s website (the “Site”) at www.cyberobics.com.   The App can be downloaded to your PC, Android,  IOS or other operating system or device. By registering as a member or by using the Site or App in any way, you accept these Terms of Service ("Agreement" or "Terms"), which forms a binding agreement between you and the Company. Each time you access the Site or App you agree to the current Terms, the most recent revision date which can be found above as "Last Updated".  You should also read and understand the CYBEROBICS Privacy Policy, which is incorporated by reference into this Agreement and is available on the Site at www.cyberobics.com/en/privacy-policy/.

 

Prior to using the Site or App it is important for you to know and understand that by visiting the Site and/or using the App, you are agreeing to accept certain liability limitations and legal and health disclaimers, which we further explain throughout this Agreement. In other words, your use of the Site or App is at your own risk, and we do not assume any liability, or make any warranties of any kind, express or implied, with respect to the Site or App.

 

IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING OUR PRIVACY POLICY, LIMITATIONS OF LIABILITY, WARRANTY DISCLAIMERS AND GENERAL HEALTH AND LEGAL DISCLAIMERS, DO NOT USE THE SITE OR APP.

 

YOU AND THE COMPANY UNDERSTAND AND AGREE THAT THE ARBITRATION PROVISION CONTAINED IN SECTION 18 PROVIDES THAT WE EACH AGREE TO RESOLVE ANY DISPUTES BETWEEN US THROUGH BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW, AND YOU HEREBY AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL AND THAT NO CLAIM OR ARBITRATION PROCEEDING UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER CLAIM OR ARBITRATION PROCEEDING, AND NO CLASS PROCEEDINGS SHALL BE PERMITTED. 

 

By accessing the Site or App, your electronic consent to this Agreement has the same effect as if made in writing.  You can print or download a copy of this Agreement for your records. To withdraw this consent, you must cease using the Site or App and terminate your account.

 

Please contact us at hello@cyberobics.com with any questions regarding this Agreement.

 

 

HEALTH WARNING AND LIABILITY DISCLAIMER:

YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING THIS OR ANY OTHER EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING.

 

NOTHING STATED OR POSTED ON THE SITE OR APP IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR MEDICAL OR PROFESSIONAL ADVICE OR CARE.

 

YOUR USE OF THE SITE OR APP IS AT YOUR OWN RISK.

PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER IN SECTION 2 BELOW BEFORE COMMENCING YOUR USE OF THE SITE OR APP.

 

THE COMPANY SHALL NOT BE LIABLE FOR ANY LIABILITY, OF ANY KIND, RESULTING FROM THE USE OF THE SITE OR APP.

 

Contents of These Terms of Service

1. Who May Use the Site or App

2. Professional Advice and Medical Disclaimer

3. Your Representations and Warranties

4. General Disclaimers; Modifications

5. Limitation of Liability

6. Privacy

7. How to Become a Member

8. Payments

9. Term and Termination; Account Deletion

10. Code of Conduct and Prohibited Activities

11. Submissions

12. Indemnification

13. Access to the Site or App

14. Third Party Links and Content

15. Intellectual Property

16. General Provisions

17. Notice to California Residents

18. Questions

1. Who May Use the Site or App

AGE REQUIREMENT: You must be at least 18 years old to use the Site or App.  Use by those under 18 years old is not permitted, regardless of parental authorization.

 

NOTICE TO PARENTS AND GUARDIANS:  If your child under 18 is using the Site or App and, please contact us immediately so that we can disable his or her access. If you have questions about the Site or App, please contact us at, hello@cyberobics.com.

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2. Professional Advice and Medical Disclaimer

YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER BEFORE STARTING THIS OR ANY OTHER EXERCISE OR NUTRITION PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY MEMBERS) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, OR HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY. DO NOT USE THE SITE OR APP IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY AND CONTACT YOUR PHYSICIAN OR HEALTH CARE PROVIDER.

 

THE COMPANY OFFERS HEALTH AND FITNESS INFORMATION THAT IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED OR AVAILABLE THROUGH THE SITE OR APP IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE SITE OR APP AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROVIDER. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROVIDER BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITE OR APP. THE USE OF ANY INFORMATION PROVIDED ON THE SITE OR APP IS SOLELY AT YOUR OWN RISK.

 

IF YOU ARE IN THE UNITED STATES AND THINK YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL 911 IMMEDIATELY.

 

THE SITE AND APP ARE CONTINUALLY UNDER DEVELOPMENT AND THE COMPANY MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE SITE OR APP WILL INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

 

3. Your Representations and Warranties

By using the fitness services offered on the Site or App, you affirm that either: (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past several months; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of the exercises you intend to engage in through use of the Site or App.

 

If applicable, you further affirm that (A) you are not pregnant or (B) if you are pregnant, your physician has specifically approved your use of the  exercises you intend to engage in through use of the Site or App.

 

 

4. General Disclaimers; Modifications

The Company provides the Site and App on an "as is" and "as available" basis. You therefore use the Site and App at your own risk.

 

The Company expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, the Company makes no representations or warranties:

o   That the Site, App, or any particular fitness program is suitable for you;

o   Regarding the adequacy or safety of the Site or App for any particular user;

o   That the Site or App will meet your personal needs;

o   That the Site or App will be permitted or legal in your jurisdiction;

o   That the Site or App will be uninterrupted or error-free;

o   That the Company will continue to offer or support any particular feature of the Site or App; or

o   Concerning sites and resources outside of the Site or App, even if linked to from the Site or App.

 

The Company reserves the right to modify the Site or App. The Company may change, modify, add, remove, suspend, cancel or discontinue any aspect of its Site, App, or Subscriptions (as described below) including the functionality, content, new member pricing, and/or availability of any features of such Subscriptions at any time in the Company’s sole discretion.  You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Site or App. The Company has no obligation to screen or monitor any content and does not guarantee that any content made available on the Site or App complies with this Agreement or is suitable for all users. The Company shall not be responsible for loss or corruption of data, and you hereby waive all claims with respect to damage to your computer system, internet access, data, download or display device.

 

To the extent that a third party may view or have access to Site or App content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in this Agreement, and are responsible for their actions with regard to access, submission, or posting of any content.

 

To the extent any disclaimer or limitation of liability in this Agreement does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the Site or App, and no warranties shall apply after such period.  Exclusions and Limitations: Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. This Limitation of Liability shall be to the maximum extent permitted by applicable law.

 

5. Limitation of Liability

To the fullest extent permitted by law: (i) in no event shall the Company, nor its affiliates, be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for personal injury, death, loss of livelihood, loss of enjoyment, pain and suffering, emotional distress, loss of profits, loss of future earnings, goodwill, use, and/or any other damages or other intangible losses; and (ii) the Company and its affiliates' total liability to you shall not exceed the amounts paid by you to Site or App over the twelve (12) months preceding your claim(s).

 

Exclusions and Limitations: Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. This Limitation of Liability shall be to the maximum extent permitted by applicable law.

 

6. Privacy

Your privacy rights are set forth in our Privacy Policy, which forms a part of this Agreement. Please review the Privacy Policy to learn about:

o   What information we may collect about you;

o   What we use that information for; and

o   When and with whom we share that information.

CONSENT TO EMAIL: When you register to use the Site or App, you agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to the Site or App, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us or third party partners.  You may opt out of receiving emails with commercial offers or promotions as provided in the Privacy Policy.

 

7. How to Become a Member

REGISTRATION: To use the Site or App, you must register as a member (“Member”) by providing a user name, birthday, password, and valid email address to the Company, and valid payment method information to our third party payment processor. This information will be used to create your membership account with the Company.  You must provide complete and accurate registration information and notify us if your information changes by updating your Member account at the “My Account” page. 

 

USER NAME: You may not use someone else's name, a name that violates any third party right, or a name that is obscene or otherwise objectionable. 

 

NON-COMMERCIAL USE: Use of the Site and App is for personal use only. Members and other users may not use the Site or App in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services; or (ii) for any other commercial purposes. Users of the Site and App may not use any information obtained from the Site or App to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the Site or App for any purpose unless expressly authorized by the Company. If you wish to inquire about possible commercial use, please contact us at, hello@cyberobics.com.

The Company may investigate and reserves the right to take any available legal action in response to illegal and/or unauthorized uses of the Site or App.

 

ACCOUNT SECURITY: You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you are using a computer that others have access to, you must log out of your account after using the Site or App. If you become aware of any unauthorized access to your account, you must change your password and notify us immediately at hello@cyberobics.com.

 

 

8. Payments

Auto billing; Subscription Fees; Free Trial Terms. The Site and App constitute a paid, auto-renewing subscription service (the “Subscription”). If you purchase a Subscription by accepting our Free Trial offer, you are agreeing to automatic (recurring) billing, and agree to pay the charges made to your account in connection therewith. Your Subscription, and monthly billing of your account, will continue indefinitely until cancelled by you. Instructions on cancellation are in the next section, "How to Cancel". 

 

Your Subscription begins when you have created a Member account and completed the Free Trial sign-up process (i.e., when your personal and payment information has been provided). At the end of your Free Trial, you will begin to be billed automatically each month (about every 30 days) until you cancel. Once we begin to bill you, cancellations take effect starting at the end of your current billing period, meaning there are no partial month refunds or credits. If you cancel your Free Trial membership at anytime in the first thirty days (i.e., during the Free Trial period), you will not be charged.

 

At certain times, we may offer special promotional offers ("Special Offers") that are billed at a discounted rate. These offers may have a different Free Trial period length, or no Free Trial period. If you accept such an offer, you will begin to be billed at the time payment information is collected, or, if a Free Trial is being offered as part of the Special Offer, at the end of the special promotion's Free Trial period. Note: in these cases, our typical 30-day Free Trial for new Members will not be applicable to the Subscription.

 

These terms will be disclosed on the payment screen at the time of sign up, prior to your submission of billing or payment information.

 

In all instances, you will continue to be automatically billed monthly after your Free Trial ends (or immediately if there is no Free Trial) unless you cancel your Subscription. The new Member pricing of our Subscription may vary periodically. We cannot guarantee that the price of your Subscription is the lowest available, or historically lowest or best, price. You will be charged in accordance with the terms you agreed to at the time you signed up.

 

HOW TO CANCEL YOUR SUBSCRIPTION

 

If you do not wish for your Subscription to renew automatically, or if you want to change or terminate your Subscription, first log into your account, and then click on “Unsubscribe” link at the bottom of the “My Account” page. Your cancellation will take effect starting at the end of your current billing period.

 

Your cancellation effective date will be listed and you will continue to have access to your account through the account expiration date. So, for example, if you have a monthly Subscription that began on the first of the month but you cancel mid-month, your cancellation will take effect as of the beginning of the following month. Please note:  there are no refunds on Subscriptions for billing periods that have already begun.

 

Quarterly and Annual Subscriptions.

 

In certain circumstances, we will offer Subscriptions for a longer term (for example, 3 months, 6 months or even a year). These longer-term Subscriptions are charged in full for the longer term (for example, 3 months, 6 months or a year) upon purchase, and automatically renew for the same duration as the initial Subscription term you selected (for example, if you initially purchased a 3 month Subscription, your Subscription will automatically renew for three months; 6 month subscriptions will automatically renew for six months, and so on). The amount due for the next renewal term will be due and immediately payable in full and charged as of the first day of such renewal term. You can always cancel before your next renewal term by logging into your account, and following the cancellation instructions above ("How to Cancel").

 

Authorization. When you sign up for a Free Trial, Special Offer, or Subscription and provide a payment method to the Company’s third party payment processor you are granting your express consent and are expressly authorizing our payment processor to store your payment information and the Company to automatically charge your payment method each month or other Subscription term for the Site or App.

 

If you provide a payment method and our charge results in an overdraft, chargeback or other fee from your bank, you alone are responsible for that fee.

 

EVEN IF YOU DO NOT USE THE SUBSCRIPTION OR ACCESS THE SITE OR APP, YOU WILL BE RESPONSIBLE FOR ANY SUBSCRIPTION FEES UNTIL YOU CANCEL YOUR SUBSCRIPTION OR IT IS OTHERWISE TERMINATED.

 

To cancel, follow the instructions above ("How to Cancel").

 

Changes. The Company may change, modify, add, remove, suspend, cancel or discontinue any aspect of its Site, App, or Subscriptions including the functionality, content, and/or availability of any features of such Site, App, or Subscriptions at any time in the Company’s sole discretion.

 

The Company may increase its fees for a Subscription effective the first day of a billing renewal by giving you notice of the new fees at least thirty (30) days before you are billed. If you do not cancel your Subscription, you will be deemed to have accepted the new fees.


9. Term and Termination; Account Deletion

TERM: This Agreement begins on the date you register for a Member account on the Site or App and continues as long as you have an account on the Site or App that you have not deleted or that has not otherwise been terminated.

 

ACCOUNT DELETION: You may delete your account at any time. We reserve the right, but are under no obligation to, to delete an account from the

Site or App that remains inactive (i.e., the user fails to log in) for a continuous period of at least six (6) months, or immediately when all Subscriptions are cancelled or when your payment method expires, is withdrawn or otherwise ceases.

 

TERMINATION FOR BREACH: The Company may suspend, disable, or delete your account (or any part thereof) if the Company determines that you have violated any provision of this Agreement or that your conduct may tend to damage the Company’s reputation or goodwill. If the Company deletes your account for any of the foregoing reasons, you may not re-register for the Site or App. The Company may block your email address and Internet protocol address to prevent further registration. The Company is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.

 

After your Subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.

 

EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all access permissions and licenses granted by the Company will terminate. Sections 4-5, 9, and 12-18 shall survive termination. In the event of account deletion for any reason, any content that you submitted may no longer be available. The Company shall not be responsible for the loss of such content.

 

 

10. Code of Conduct and Prohibited Activities

In using the Site and App, you must behave in a civil and respectful manner at all times. Further, you will not and it is strictly prohibited to:

o   Act in a deceptive manner by, among other things, impersonating any person;

o   Harass or stalk any other person;

o   Harm or exploit minors;

o   Distribute "spam";

o   Promote information that is false or misleading, or promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable;

o   "frame" or "mirror" any part of the Site or App;

o   use meta tags or code or other devices containing any reference to the Company, the Site or App (or any trademark, trade name, service mark, logo or slogan of the Company) to direct any person to any other website for any purpose;

o   modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the  Site or App, or any software used on or for the  Site or App, or cause others to do so;

o   post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Site or App other than solely in connection with your use of the Site or App in accordance with this Agreement.

o   Collect information about others;

o   Advertise or solicit others to purchase any product or service within the Site or App;

 

o   Promote fraudulent schemes, multi level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures;

o   Publicize or promote commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes; or

o   Participate in any activity that in any way violates any law or the Company's standards as determined by the Company in its sole discretion.

The Company has the right, but not the obligation, to monitor all conduct on and content submitted to the Site or App. The Company reserves the right to alter, edit, remove, or refuse to post any content, in whole or in part in its sole discretion and/or to satisfy or comply with applicable laws, regulations and/or legal processes.

 

The Company reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates the Terms of Service, including removing the offending  content from the Site or App and terminating or suspending the Subscription of such violators.

 

Your use of the Site and App must comply with all applicable laws and regulations. You agree that the Company may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary.

 

11. Submissions

As between you and the Company, you own all content that you submit to the Site or App, whether directly via the Site or App or indirectly (for example, via Facebook or Instagram). However, it is important that you understand that by posting or submitting content to the Company you are granting the Company and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers), royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and alter, modify and make derivative works from your content (including without limitation, your name and likeness, photographs and testimonials) for any purpose whatsoever commercial or otherwise without compensation to you, without crediting you, and without any opportunity for you to inspect or approve such use. In addition, you waive any "moral rights" or "performance rights" in your content.

 

If you make suggestions to the Company on improving or adding new features to the Site or App, the Company shall have the right to use your suggestions without any compensation to you. The Company has no fiduciary relationship with you.

 

 

12. Indemnification

You agree to indemnify, defend, and hold harmless the Company and its affiliates, directors, officers, employees, and agents, from and against any liability, claims, damages, losses and costs (including reasonable attorney's fees) that: (i) arise from your activities on the Site or App; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to the Company violates any law or breaches, infringes or misappropriates any personal right or third party right, including any intellectual property or privacy or publicity right or defamation. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in connection therewith.

 

13. Access to the Site or App

ACCESS: The Company grants you a limited, non-exclusive right to access and use the Site and App for your own personal, non-commercial purposes. This license is personal to you and may not be assigned or sublicensed to anyone else.  This includes the right to view content available on the Site and App.

 

RESTRICTIONS: Except as expressly permitted by the Company in writing, you will not reproduce, redistribute, publicly display, sell, create derivative works from, decompile, reverse engineer, or disassemble the Site or App or any content on the Site or App. Nor will you take any measures to interfere with or damage the Company. All rights not expressly granted by the Company are reserved.

 

MOBILE DEVICES, APPLICATIONS AND SET-TOP BOXES/EXTERNAL DEVICES:

These Terms, and all of the provisions herein, also govern the use of our Site and App through your mobile, desktop and set-top devices and related applications (for example, iOS devices, Android devices, Roku, Apple TV and other such devices and their corresponding apps).

 

The App, regardless of the manner and means in which it is downloaded (for example the Apple AppStore, Google Play Store, your console's app store, etc.) is licensed, not sold, to you for use only under these Terms. We, the licensor, CYBEROBICS USA, LLC. (as the application provider) reserve all rights not expressly granted to you.

 

Accordingly, if you download the App, you will be:

o   installing a software program on your operating system or device in the form of an application;

o   entering into this contract with the Company, governing your use of the App.

14. Third Party Links and Content

Certain links on the Site or App may let you leave the particular Site or App you are accessing in order to access a linked site (the "Linked Sites"). When you are linking to a third party site, it is important to know that the Company does not control these sites, nor has the Company reviewed or approved the content which appears on the Linked Sites. The Company is not responsible for the legality, accuracy or nature of any content, advertising, products or other materials on or available from any Linked Sites, or the conduct of such Linked Sites. You acknowledge and agree that the Company 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 the use of any of the links, content, goods or services available on or through the Linked Sites.

 

Dealings with Third Parties

More specifically, your participation, correspondence or business dealings with any third party found on or through the Site and App (e.g., a Linked Site), regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that the Company shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.

 

15. Intellectual Property

You acknowledge that the Site and App contain software, content, graphics, photos, videos, know-how, product ideas, comments and other material (collectively, "Intellectual Property") that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All CYBEROBICSTM-generated Intellectual Property and Intellectual Property developed for the Company by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; without limitation, the Company owns a copyright in the look and feel of the Site and App, and in the selection, coordination, arrangement and enhancement of content on the Site and App. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to use the Site and the App, you may access the content via the Site and download one copy of the App (but never the content) to any single computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these Terms. Unless otherwise specified, modification of the content or use of the content for any other purpose, including use of any such content on any other website or networked computer environment, is strictly prohibited.

 

The CYBEROBICS™ name, logos and affiliated applications and technologies are the exclusive property of CYBEROBICS, Inc. or its affiliates.  All other trademarks appearing on the Site or App are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Site or App. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site or App should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

 

The Company or its affiliates owns and retains all proprietary rights in the Site and App, and in all content, trademarks, trade names, service marks and other Intellectual Property related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site or App, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.

 

 

16. General Provisions

ARBITRATION AND GOVERNING LAW:

 

The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Site or App shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against the Company in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against the Company or its affiliates any class action, class arbitration, or other representative action or proceeding.

 

By using the Site or App in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company or its affiliates (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

 

Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims court actions) may be commenced only in the federal or state courts located in Los Angeles County, California. You hereby irrevocably consent to the jurisdiction of those courts for such purposes and you irrevocably waive any right to a trial by jury.

This Agreement, and any dispute between you and the Company, shall be governed by the laws of the state of California without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

 

INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES: Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by the Company in exercising any right hereunder will waive any further exercise of that right. The Company’s rights and remedies hereunder are cumulative and not exclusive.

 

SUCCESSORS; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES: This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without the Company’s prior written consent. No third party shall have any rights hereunder.

 

NOTICES: You consent to receive all communications including notices, agreements, disclosures, or other information from the Company electronically. The Company may provide all such communications by email to the email address you provide as part of your Member account or by posting them on the Site. For support-related inquiries, you may send an email to hello@cyberobics.com or the following address:

 

CYBEROBICS USA, LLC

925 N La Brea Ave, 4th Floor, Los Angeles, CA 90038

Attention: Legal Department

 

Nothing herein shall limit the Company’s right to object to subpoenas, claims, or other demands.

 

MODIFICATION: This Agreement may not be modified except by a revised Terms of Service posted by the Company on the Site or a written amendment signed by an authorized representative of the Company. A revised Terms of Service will be effective as of the date it is posted on the Site and notice that the Terms of Service have been revised will be provided to you via email.

 

ENTIRE AGREEMENT: This Agreement incorporates the Privacy Policy  by reference.

This Agreement constitutes the entire understanding between the Company and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.

 

17. Notice to California Residents

If you are a California resident, you are entitled under California Civil Code Section 1789.3 to the following specific consumer rights notice:

The name, address and telephone number of the provider of the Site and App is CYBEROBICS USA, LLC, 925 N La Brea Ave, 4th Floor, Los Angeles, CA 90038. Complaints regarding the Site or App or requests to receive further information regarding use of the Site or App may be sent to the above address or to:  hello@cyberobics.com

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.

 

18. Questions

Please direct any questions you may have about the Site, App, or Privacy Policy to the Company at hello@cyberobics.com.

 

END OF DOCUMENT.

Terms of Service

Version: April 2016


I. Scope

1. These Terms of Service establish the conditions for use of the online portal and the content and functionality on the portal which is available at www.cyberobics.com and www.cyberobics-business.com (hereinafter referred to individually as the “Website”).

2. These Terms of Service establish the conditions for use of the Website and the content on the Website. The latest version of the Terms of Service is available on the website.

3. The website operator is CYBEROBICS GmbH, Saarbrücker Straße 38, 10405 Berlin, Germany Tel. +49 (0)30 540 0000, E-mail info@cyberobics.com (hereinafter referred to as “CYBEROBICS”). Further contact information, commercial registry information, and the name of an authorized person at CYBEROBICS GmbH is available in the Legal Information section.

4. The contract language is German.


II. Use of the Website

1. By using the Website, you confirm that you have read and understood the applicable Terms of Service at the time of use and you accept their validity. If you do not agree to these Terms of Service, you cannot use the Website.

2. CYBEROBICS is entitled to modify or supplement the Terms of Service for use of the Website at any time; changes or supplements take effect once they are announced on the Website. All changes or supplements to these Terms of Service require written form (section 126b of the German Civil Code); this also applies in the case of a change to this provision.

3. Use of the Website is free of charge. There are no warranty claims in relation to usage.


III. Usage rights

If there are copyrights, trademark rights, or other intellectual property rights relating to the Website or its content, these rights belong to CYBEROBICS or contractual partners of CYBEROBICS. You are entitled to use the content provided on the Website exclusively for informational purposes and you undertake not to use any content on the Website, whatever its form, in any other way. In particular, any reproduction of content or sharing with third parties requires the express prior consent of CYBEROBICS in writing.

IV. Your behavioral obligations on the platform

You undertake to refrain from any actions which may impair and/or unduly burden the operation of the Website or the supporting technical infrastructure or unlawfully use content on the Website that is protected by copyright, trademark, or other form of protection. Such actions include the following, in particular:
•    use of software, scripts, or databases in conjunction with use of the Website;
•    blocking, overwriting, modifying, copying of data, and/or other content, insofar as this is not necessary for proper use of the Website;
•    reproduction and/or distribution and/or public communication of content available on the Website that is protected by copyright, trademark, or other intellectual property rights, insofar as this is not expressly permitted by CYBEROBICS in writing or is unequivocally provided for authorized use on the Website.

V. Health information

Please take note of our health information, which you can access here at any time.

VI. Security, availability, and functionality of the platform

1. The information provided on the Website is compiled by CYBEROBICS with the utmost care. However, CYBEROBICS offers no guarantees regarding the completeness or accuracy of this information. Furthermore, CYBEROBICS accepts no responsibility for errors in the content on the Website.

2. CYBEROBICS strives to ensure smooth operation of the Website and enable constant availability of the Website. However, CYBEROBICS notes that complete and continuous availability of the Website is not technically feasible. No claims are therefore made regarding fault-free operation or specific availability of the Website. CYBEROBICS in particular reserves the right to limit access to the Website due to maintenance work, capacity issues, or other events in whole or in part, temporarily or permanently.

3. Furthermore, no claims are made regarding maintenance of specific functions on the Website. There are also no claims made regarding maintenance of the Website operation itself. CYBEROBICS may modify, remove, or impose further conditions on all information provided on the Website as well as all services and functions at any time, in whole or in part, as well as make new services and functions available. Furthermore, CYBEROBICS may discontinue the Website completely at any time.

VII. Hyperlinks

The Website may contain links (“hyperlinks”) to other websites on the Internet whose content is maintained by third parties. Use of these hyperlinks is at your own risk. CYBEROBICS only provides access to these websites and has no influence on the technical design or content of the websites.
CYBEROBICS does not make any claim to the content on the linked websites, but rather hereby expressly distances itself from all content on all linked websites. CYBEROBICS assumes no liability for the technical design or content of the linked websites, in particularly with regard to any infringements of legal provisions or rights of third parties (e.g. copyrights, trademarks, or personal rights).
If CYBEROBICS becomes aware of any unlawful content on the linked sites, CYBEROBICS will promptly remove the hyperlinks or content from the Website. If you notice any unlawful content, please contact info@cyberobics.com.

VIII. Liability

1. CYBEROBICS is only liable without limitation, for whatever legal reason, in the case or intent or gross negligence.

2. In the case of mild negligence, CYBEROBICS is only liable for obligations which are essential for the user’s use of the Website (cardinal obligations), however in these cases the amount is limited to damages relating to typical usage foreseeable on commencement of usage. Cardinal obligations are obligations which enable appropriate usage and on which the user regularly depends.

3. These liability limitations also apply in the case of fault on the part of employees, vicarious agents, or executive body members of CYBEROBICS.

4. The liability limitations shall not apply in the case of personal injury and in the case of a liability in accordance with the product liability law, unless these damages were caused by a violation on your part of the provisions of item IV of these Terms of Service.


IX. Data privacy

When using the Website, personal information relating to you is collected and used by CYBEROBICS. The type and scope of the data collection and use is stated in the CYBEROBICS Privacy Policy, which you can consult here at any time.

X. Final provisions

1. If one or more of the provisions of these Terms of Service should be or become invalid, the validity of the remaining provisions shall not be affected.

2. The laws of the Federal Republic of Germany shall apply, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sales of Goods.

3. If you are a merchant as defined by the German Commercial Code, a legal person under public law, or a special fund under public law, the place or jurisdiction for any disputes arising from and relating to use of the platform shall be Berlin, irrespective of the legal basis.