CYBEROBICS™ Terms of Service United States

Last Updated: April 25, 2019

Please review these terms and conditions of use carefully before using the Cyberobics application or website.

This Terms of Use (these “Terms”) states the terms and conditions upon which Cyberobics USA, LLC, a Delaware limited liability company (“we” or “us”), will provide service to you through our Cyberobics application, website and related services (collectively, the “App”).  As used in this document, the terms “you” or “your” refers to you, any entity you represent, your or its representatives, successors, assigns and affiliates, and any of your or their devices.

By visiting, accessing, using, downloading, copying, installing and/or joining (collectively “using”) the App, you express your understanding and acceptance of these Terms.  If you do not agree to be bound by these Terms, cease using the App and delete it.  These Terms constitute a binding contractual agreement between you and us.  These Terms also contain an arbitration clause under which certain claims may not be brought in a court or decided by a jury, so please read this document carefully.

These terms also include certain liability limitations and legal and health disclaimers that limit our liabilities.  In other words, your use of the 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 App.

I. Health Warnings and Disclaimers

1. You should consult with 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, if you have ever experienced discomfort while exercising, if you smoke, if you have high cholesterol, or have a bone or joint problem that could be made worse by a change in physical activity.

2. Do not use the app if your physician or health care provider advises against it.

3. 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.

4. We provide health and fitness information that is designed for general information purposes only.  Nothing stated in these terms of set forth in the App is intended to be, and must not be taken to be, the practice of medicine or medical or professional advice or care to you or any other person (including, without limitation, the practice of psychiatry, psychology, or psychotherapy nor are we providing any health or nutritional care, treatment, instructions, diagnosis, prognosis, or advice).  You should not rely on any information on the App as a substitute for, or a replacement of, any professional medical advice, diagnosis or treatment.  If you have any concerns or questions about your health, you should always consult a physician or other qualified health-care provider.

5. Do not ever disregard, avoid or delay obtaining medical or health related advise from your health-care provider because of something you may have seen on the app.  the use of any information provided by the app is solely at your own risk.

6. If you are in the united states and think you are having a medical or health emergency, call 911 immediately.

7. You represent and warrant the following (or, in the alternative, you represent and warrant that your physician has specifically approved of the exercises you intend to engage in through the use of the App):

· No physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician.

· You have never felt chest pain when engaging in physical activity.

· You have not experienced chest pain when not engaged in physical activity at any time within the past twelve months.

· You have never lost your balance because of dizziness and you have never lost consciousness.

· You do not have a bone or joint problem that could be made worse by a change in your physical activity.

· Your physician is not currently prescribing drugs from your blood pressure or heart condition or any other drugs that may interfere with your ability to engage in exercise safely.

· You do not have a history of high blood pressure or heart problems, and no one in your immediate family has a history of high blood pressure or heart problems.

· You do not know of any other reason you should not exercise and have no reason to know of any other reason you should not exercise.

8. You represent and warrant that you are not pregnant or that, if you are pregnant, your physician has specifically approved your use of the exercises you intend to engage in through the use of the App.

II. Eligibility and Accounts

1. Use of the App is not permitted where prohibited by law.  Without limiting the foregoing, you represent and warrant that you are not located in a country that is subject to U.S. embargo, or a country that has been designated by the U.S. as a “terrorist supporting” country and that you are not listed on any U.S. list of prohibited or restricted parties.

2. You must be at least eighteen (18) years of age to use the App.  If you are under eighteen (18) years old, you are not permitted to use the App and you must immediately cease using the App, regardless of parental authorization.  If you are the guardian of any person under the age of eighteen (18) please contact us immediately so that we may disable the minors access to the App.

3. You must create an account with us (an “Account”) to use the App to its fullest extent. You represent and warrant that all information that you provide to us in creating your Account is complete and accurate. You shall update such information when it changes or when we request. You acknowledge that we may also access, with your permission, personally identifiable information through Facebook, Google or other means based on the permissions you provide.

4. You shall not use another person or entity’s Account without authorization.  You shall be solely responsible for maintaining the confidentiality of and restricted access to your Account.  You shall be solely responsible for all activities that occur under your Account.  You shall notify us immediately of any breach of security or unauthorized use of your Account.  Pursuant to the terms herein, we shall not be liable for any losses resulting from any unauthorized use of your Account and, in addition to Sections 12 and 13 hereof, you hereby indemnify us and hold us harmless for any such unauthorized use.  You acknowledge and understand that anyone who gains access to your Account will gain access to your all of your data on your Account, including any private content.

5. The consideration for your knowing acceptance of these Terms is that we are providing you the Grant of Use to use the App pursuant to Section 3 hereof. You acknowledge and agree that this consideration is adequate and that you have received the same upon use of the App.

III. Grant of Use and Termination

1. We grant you a non-exclusive, non-transferable and limited right to access, non-publicly display, and use the App including all content available therein (the “Content”) on your mobile, tablet, personal computer or other device consistent with these Terms.  

2. The App is for personal use only and you may not use the App in connection with any commercial activities, such as advertising or soliciting any other users for any purposes or for any other commercial purposes.  Without limiting the generality of the foregoing, you may not use the App to publicly disseminate or display any Content on the App (e.g., hold a public class using the Content on the App).  If you wish to inquire about possible commercial use, which must be pursuant to a separate and specific written agreement, you may contact us.

3. This grant is terminable by us at will for any reason and at our sole discretion, with or without prior notice.  Upon termination we may: (i) delete or deactivate your account, (ii) block your e-mail and/or IP addresses or otherwise terminate your access to or use of the App, and/or (iii) remove and/or delete any of your User Submissions (defined below).  You agree not to use or attempt to use the App after said termination.  Upon termination, the grant of your right to use the App shall terminate, but all other portions of these Terms shall survive.  You acknowledge that we are not responsible to you or any third party for the termination of your grant of use.

4. In addition to the terms set forth herein, your use of the App shall be limited by the rules and features of the App, which may change from time to time in our sole discretion.  You shall not attempt to use the App in any manner in which the App is not intended or permitted to be used.

IV. Intellectual Property

1. The Content, with the exception of User Submissions and Third Party Content (defined below), including text, graphical images, photographs, music, video, software, scripts and trademarks, service marks and logos contained therein (collectively “Proprietary Materials”), are owned by and/or licensed to us.  All Proprietary Materials are subject to copyright, trademark and/or other rights under the laws of applicable jurisdictions, including the United States, foreign laws, and international conventions.  We reserve all our rights over our Proprietary Materials.

2. Except as otherwise explicitly permitted, you agree not to copy, modify, publish, transmit, distribute, participate in the transfer or sale of, create derivative works of, or in any other way exploit, in whole or in part, any Content.

3. In addition to termination of your Account and termination of the grant of use of the App, in the event that you infringe our or our affiliates’/licensors’ copyrights in the Proprietary Materials, at any time before final judgment is rendered against you for such infringement, we or our affiliates/licensors may elect to recover, instead of any other damages that may be permitted under law for violation of copyrights (and which may be difficult to reasonably ascertain), liquidated damages of One Hundred and Fifty Thousand Dollars ($150,000) for each work that you infringe.  These liquidated damages are not a penalty, but instead an attempt by you and us to reasonably ascertain the amount of actual damages that occur from such a violation.

V. User Submissions

1. You are entirely responsible for any and all materials you submit or otherwise make available via the App, including pictures, videos, communications or profile information, (collectively, “User Submissions”).  User Submissions cannot always be withdrawn.  You acknowledge that any disclosure of personal information in User Submissions may make you personally identifiable and that we do not guarantee any confidentiality with respect to User Submissions.

2. You shall be solely responsible for any and all of your own User Submissions and any and all consequences of positing, uploading, publishing or otherwise making them available.  For any of your User Submissions, you affirm, represent and warrant that you own or have the necessary licenses, permissions, rights or consents to use and authorize us to use all trademarks, copyrights, trade secrets or other proprietary rights in and to User Submissions for any and all uses contemplated by the App and these Terms.

3. You further agree that you shall not submit material that:

· Is copyrighted, protected by trade secret or trademark laws, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to submit the material and to grant us all of the license rights granted herein;

· Is obscene, pornographic, vulgar, illegal, unlawful, defamatory, fraudulent, libelous, harmful, harassing, abusive, threatening, invasive of privacy or publicity rights, hateful, racially or ethnically offensive, inflammatory, or otherwise objectionable or inappropriate as decided by us in our sole discretion;

· Depicts illegal activities, promotes or depicts physical harm or injury against any group or individual, or promotes or depicts any act of cruelty to animals;

· Impersonates any person or entity or otherwise misrepresents you in any way, including creating a false identity;

· Would constitute, encourage or provide instructions for a criminal offense, a violation of the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; or

· Is unsolicited or unauthorized advertising, promotion, “spam” or any other form of solicitation.

4. We claim no ownership or control over User Submissions or Third Party Content.  You or a third party licensor, as appropriate, retain all copyrights to User Submissions and you are responsible for protecting those rights as appropriate.  You irrevocably grant us a world-wide, non-exclusive, royalty-free, perpetual, non-cancelable, sub-licenseable license to reproduce, publicly perform, publicly display, distribute, adapt, modify, publish, translate and create derivative works of User Submissions for any purpose, including without limitation any purpose contemplated by the App and these Terms.  Furthermore, you also grant other users of the App a right and license to display, stream and download User Submissions in connection with their use of the App and for other personal use.  You also irrevocably waive and cause to be waived against us and any of our users any claims and assertions of moral rights or attribution with respect to User Submissions. 

5. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to User Submissions.  Specifically, you represent and warrant that you own the title to the User Submissions, that you have the right to upload the User Submissions to the App, and that uploading the User Submissions will not infringe upon any other party’s rights or your contractual obligations to other parties.

6. You acknowledge that we may at our sole discretion refuse to publish, remove, or block access to any User Submission for any reason, or for no reason at all, with or without notice.

7. You agree to defend us against any claim, demand, suit or proceeding made or brought against us by a third-party alleging that your User Submissions or your use of the App in violation of these Terms infringes or misappropriates the intellectual property rights of a third-party or violates applicable law and you shall indemnify us for any damages finally awarded against and for reasonable attorney’s fees incurred by us in connection with any such claim, demand, suit or proceeding.

8. If you make any suggestions to us about improving the App or adding new features to the App, you are assigning to us the right to use your suggestions without any compensation to you.

VI. Third-Party Content and Content Generally on the App

1. You understand and acknowledge that, when using the App, you will be exposed to Content from a variety of sources including content uploaded to the App by other users (collectively, “Third Party Content”) and that we do not control and are not responsible for any Third Party Content or User Submissions.  You understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent or otherwise objectionable and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against us with respect thereto.

2. You understand and acknowledge that we assume no responsibility whatsoever for monitoring the App for inappropriate Content or conduct.  If at any time we choose, in our sole discretion, to monitor such Content, we assume no responsibility for such Content, have no obligation to modify or remove any such Content (including User Submissions and Third Party Content), and assume no responsibility for the conduct of the users submitting any such Content (including User Submissions or Third Party Content).

3. All Content on the App is provided to you “AS-IS” for your information and personal use only and you shall not use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit for any other purpose whatsoever that Content without the prior written consent of the respective owners/licensors of the Content.  Without limiting further express disclaimers herein, we provide no representation or warranty regarding the accuracy or timeliness of the Content on the App.

4. Without limiting the provisions below on limitations of liability and disclaimers of warranties, all Content (including User Submissions and Third Party Content) on the App is provided to you “AS-IS” for your information and personal use only and you shall not use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit for any other purpose whatsoever the Content without the prior written consent of the respective owners/licensors of the Content.

5. You acknowledge that we may at our sole discretion refuse to publish, remove, or block access to any Content for any reason, or for no reason at all, with or without notice.

VII. General Terms for App Use

1. You may only use the App consistent with these Terms and any and all agreements under which the App is provided to you (including, for example, the Apple App Store agreement and the Google Store agreement).  You assume sole responsibility for obtaining any additional or related hardware or software required for use of the App.

2. Except as described below, you are not permitted to decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the App, use any similar means to discover the source code of the App or to discover any trade secrets or other intellectual property in the App. 

3. You acknowledge that from time to time the App may automatically check for and install updates on your device.  You agree and accept that the App may make updates without your confirmation or consent.  Any updates to the App will be deemed part of the App.  However, we have no obligation to provide you with any updates to the App (nor does any third-party).

4. You agree not to export or re-export, directly or indirectly (including via remote access) the App or other information or materials provided to you from us to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval.  In shall be your responsibility to comply with the latest United States or any other relevant jurisdiction’s export regulations, and you shall defend and indemnify us in accordance with the terms hereof for your breach of these provisions.  In the event that these Terms are required to be registered with any governmental authority, you shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

5. The App is a “Commercial Item” as that term is defined in 48 C.F.R. §2.101.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the App is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to these Terms.  Unpublished-rights reserved under the copyright laws of the United States and elsewhere.

6. If you have received the App from Apple, you acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof.

7. If you have received the App from Google or any other Android application service (for example, Amazon Apps), you acknowledge and agree that such third parties and their subsidiaries are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, such third-parties will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof.

VIII. User Conduct and Covenants

1. You represent and warrant that all the information provided by you to us is accurate and current and that you have all necessary rights, power and authority to agree to these Terms and to perform the acts required of you under these Terms.

2. As a condition of your use of the App:

· You agree not to use the App for any unlawful purpose or in any way that is prohibited by these Terms.

· You agree to abide by all applicable local, state, national and international laws and regulations.

· You agree not to use the App in any way that exposes us to criminal or civil liability.

· You agree that you are solely responsible for all acts and omissions that occur as a result of your use of the App.

· You agree that all your User Submissions that you provide to us belongs to you and that you have the right and authority to provide it to us.

· You agree not to create a false identity on the App.

· You agree to maintain the security of your login password and to be fully responsible for any and all use of your account.

· You agree not to use or attempt to use any other person’s account on the App without authorization.

· You agree not to use any automated means, including robots, crawlers, data mining tools or the like, to download, monitor or use data or content from the App.

· You agree not to use the App to collect usernames and/or e-mail addresses for sending unsolicited messages of any kind.

· You agree not to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive demands on it.

· You agree not to “stalk” or otherwise harass anyone on the App.

· You agree not to post, link to, or otherwise make available on the App any material that contains software viruses or any computer code, file or program designed to interrupt, destroy, limit or monitor the functionality of any computer software or hardware or any telecommunications equipment.

· You agree not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any information you transmit.

· You agree not to disable, circumvent, or otherwise interfere with security related features of the App or features that prevent or restrict use or copying of any Content or which enforce limitations on the use of the App or the Content therein.

· You agree not to license, sublicense, sell, resell, transfer, assign, distribute or otherwise in any way commercially exploit or make available the App or any of its Contents to any third party.

· You agree not to “frame” or “mirror” the App.

· You agree not to reverse engineer any portion of the App.

· You agree to be solely responsible for all acts and omissions that occur as a result of your use of the App.

· You agree to not use the App in any way that endangers the life or health of any person, including you.

3. We reserve the right to take appropriate action against any user for any unauthorized use of the App, including civil, criminal and injunctive redress and the termination of any user’s use of the App.  Any use of the App and our computer systems not authorized by these Terms is a violation of these Terms and certain federal and state laws, including the Computer Fraud and Abuse Act.

4. In addition to termination of your Account and grant of use of the App, any violation of this Agreement, including the provisions of this Section, shall subject you to liquidated damages of ten thousand dollars ($10,000) for each violation.  In the event that your violation results in legal action (whether against you or against us by any party) or physical harm to any party, you shall be subject to liquidated damages of One Hundred and Fifty Thousand Dollars ($150,000) for each violation.  We may, in our discretion, assign any such damage claim or portion thereof to a third party that has been wronged by your conduct. These liquidated damages provisions are not a penalty, but instead an attempt by the Parties to reasonably ascertain the amount of actual damage that could occur from such a violation. You acknowledge and agree that the amount of these liquidated damages are a minimum and that if actual damages are greater you shall be liable for the greater amount.

IX. Payments; Memberships/Subscriptions; Fees.

1. To access specific Content on the App, including memberships to access certain Content, you must make purchase(s).  Prices for access to Content and other services and activities will be posted on the App and may change from time to time in our sole discretion. Prices are subject to change and may vary due to various reasons, including special and limited promotional offers.  If at any time we terminate your rights to use the App because of a breach of these Terms, you shall not be entitled to a refund of any portion of any payment you have made.  In all other respects, such fees shall be governed by additional rules posted on the App as may be amended from time to time.

2. We require you to provide certain information to allow us to process and authorize the payment of fees, including, without limitation, your name, billing address, card number, card expiration date and card security number.  You represent and warrant that (i) you have the legal right to use form of payment that you use and that (ii) the information that you are providing with that form of payment is true and correct.  You acknowledge that we may use a third party for the purposes of processing or facilitating any payment and that by submitting your information to us, you grant us the right to provide this information to such third parties.  Alternatively, you acknowledge that we may give you the option to make your payments directly through third-parties in our discretion.  You agree to be bound by any applicable terms and conditions of our third-party payment processors.

3. You acknowledge and agree that we may charge any form of payment you have on file with us for any fees you incur on the App (e.g., for subscriptions).  You authorize us and our agents (including payment processors) to charge the form of payment on file for such payments on your behalf.

4. You acknowledge that taxes or any other additional fees or charges may be added on to any charges or fees you make on the App and that you are responsible for the same.  We may modify, add or remove such taxes or additional fees or charges in our sole discretion from time to time.  You must make sure to carefully review your order before confirming it.

5. When purchasing a membership subscription, fees for the indicated period of the subscription must be paid in advance of the period for which you seek to use it.  You may not have access to subscription Content if you have not paid your subscription fee for that content for that time period.  We may in our discretion and from time to time offer a variety of subscriptions models that differ in terms of length, content and prices.

6. We reserve the right to refuse, cancel or terminate your order and/or subscription for any time and for any reason in our sole discretion. Without limiting the foregoing, we reserve the right to refuse, cancel or terminate your order and/or subscription because of product or service unavailability, errors in the description or price of our product or service and errors in your order.

7. For your convenience and satisfaction, all subscriptions will automatically renew upon expiration unless your subscription is cancelled prior to the end of the then current subscription period.  Pursuant to the following paragraph, upon all automatic renewals, we will automatically charge your payment method on file.  All subscriptions will continue indefinitely until cancelled by you.  Cancellations take effect at the end of the current billing period and there are no partial refunds or credits.  Even if you do not use the App during your subscription period, you are still responsible for any subscription fees until you cancel your subscription or it is otherwise terminated.

8. Your payment method on file may be automatically charged for your future purchases and/or the next subscription period for your subscriptions.  you hereby authorize us and our agents (including payment processors we may use) to charge your payment method on file for such payments on your behalf.

9. You agree not to report as fraudulent, lost or stolen any form of payment which you have used in conjunction with payment to us, for which you do not have a good faith reason to believe is in fact fraudulent, lost or stolen.  You agree not to report as unauthorized any charge by us for any goods or services, including subscriptions, for which you do not have a good faith reason to believe is in fact unauthorized.  The liability specified in this paragraph will not limit our rights or any other liability you may have for any other reason, including a breach of any other provision of these Terms.

10. If you purchase a subscription by accepting our free trial offer (which may be offered from time to time in our sole discretion), you are agreeing to automatic recurring billing at the end of the free trial period and you agree to pay the charges made to your account in connection therewith. 

11. We may modify (including by increasing) the price of any subscription at any time in our sole discretion upon thirty (30) days’ prior notice to you.  If you do not cancel your subscription prior to the effective date of the new modified price, you shall be deemed to have accepted the new price.

X. Privacy Policy

1. We retain a separate Privacy Policy and your assent to these Terms also signifies your assent to the Privacy Policy.  We reserve the right to amend the Privacy Policy at any time by posting such amendments to the App.  No other notification may be made to you about any amendments.  Your continued use of the App following such amendments will constitute your acceptance of such amendments, regardless of whether you have actually read them.

2. You acknowledge that we may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates to the App.

3. You understand, acknowledge and agree that we may access, preserve and disclose your information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably desirable or necessary for us.

XI. Modification of These Terms

We reserve the right to amend these Terms at any time by posting such amended Terms to the App.  No other notification may be made to you about any amendments.  you acknowledge that your continued use of the app following such amendments will constitute your acceptance of such amendments, regardless of whether you have actually read them.

XII. Indemnification and Release

1. You hereby agree to indemnify us and hold us harmless from any and all damages and expenses, including those arising from third-party claims, including attorney’s fees, arising from your use of the App or from your breach of these Terms. 

2. In the event that you have a dispute with one of more other users or any third parties, you hereby release us, our officers, employees, agents and successors-in-right from claims, demands and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the App.

3. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

XIII. Disclaimer of Warranties and Limitations of Liabilities

1. Read this section carefully as it limits our liability to the maximum extent permitted under applicable law.

2. The App may contain links to third-party websites or applications which are completely independent of us.  We assume no responsibility for the content, privacy policies, or practices of and make no representation or warranty as to the accuracy, completeness or authenticity of information contained in any third party websites or applications.  We have no right or ability to edit the content of any third party websites or applications.  You acknowledge that we shall not be liable for any and all liability arising from your use of any third party websites or applications.

3. The App is provided “AS-IS” and without any warranty or condition, express, implied or statutory.  we specifically disclaim to the fullest extent any implied warranties of merchantability, fitness for a particular purpose, non-infringement, information accuracy, timeliness, integration, interoperability or quiet enjoyment.  We disclaim any warranties for viruses or other harmful components in connection with the App.  Some jurisdictions do not allow the disclaimer of implied warranties.  In such jurisdictions, some of the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.

4. You acknowledge and understand that this App provides exercise tutorials and workouts.  Engaging in such exercises carries an inherent risk of serious injury or death to you and others around you.  You hereby acknowledge such risks of serious injury or death and that you are undertaking use of the App with full knowledge of such risks.  You agree and acknowledge that you are solely responsible for your own activities undertaken while using the App.  Neither we nor any of our instructors, employees, attorneys, managers, members, shareholders, directors, officers or other agents will be in any way responsible for any injuries you may suffer as a result of your use of the App.  Always make sure to discuss any course of exercise with your own medical professionals before engaging in such exercise.

5. Under no circumstances shall we be liable for indirect incidental, special, consequential or exemplary damages (even if we have been advised of the possibility of such damages) resulting from any aspect of your use of the app, whether such damages arise from your use, misuse or inability to use the app, from your reliance on any content on the app, from the interruption suspension, modification, alteration or complete discontinuance of the app or the termination of the app by us.  these limitations also apply with respect to damages incurred by reason of other services or products received or advertised in connection with the app.  some jurisdictions do not allow limitations of liability.  in such jurisdictions, some of the foregoing limitations may not apply to you to some extent.

6. We do not warrant that (i) the app will meet your requirements or expectations, (ii) the app will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from your use of the app will be accurate or reliable, (iv) the quality of any products, services, information, content or other material obtained through the app will meet your requirements or expectations, or (v) any errors in content will be corrected

7. Your sole and exclusive right and remedy in case of dissatisfaction with the app or any other grievance shall be the termination of your use of the app.  in no case shall the maximum liability of us arising from or relating to your use of the app exceed two hundred dollars ($200) in aggregate.

8. All of the above disclaimers of warranties and limitations of liabilities shall be deemed to apply to our parent companies, subsidiaries, directors, officers, employees, agents, designees, contractors, affiliates, subsidiaries, successors and assigns as well.

XIV. Disputes

1. To the maximum extent permitted by law, these Terms as well as any claim, cause of action, or dispute that may arise between you and us, are governed by the laws of the State of California without regard to conflict of law provisions.  Subject to Subsection (b) below, for any claim brought by either party, you agree to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within los angeles, california.

2. Any controversies, disputes, actions, causes of action or other claims between you and us arising out of or relating to these Terms, or the breach, termination or validity hereof or your use of the App (a “Controversy”) shall be finally settled by binding arbitration before a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules & Procedures (modified only as herein expressly provided).  The arbitrator shall be experienced with regard to commercial disputes of the type for which arbitration is being sought. The arbitration shall be before one arbitrator mutually agreed upon by the parties. The parties agree that the arbitration will be held in Los Angeles, California, or in such other place as the parties may mutually agree upon. The arbitration will be held in accordance with and subject to the procedural and substantive laws of the State of California. The arbitrator may enter a default decision against any party who fails to participate in the arbitration proceedings. The decision of the arbitrator on the points in dispute with respect to such Controversy will be final, non-appealable and binding and judgment on the award may be entered in any court having jurisdiction thereof. The parties agree that this clause has been included to rapidly and inexpensively resolve any Controversy, and that this clause shall be grounds for dismissal of any court action commenced by any party arising out of or relating to these Terms or the breach, termination or validity hereof; provided that nothing in this subsection nor these Terms shall limit any party’s right to bring (i) post-arbitration actions seeking to enforce an arbitration award or (ii) actions seeking injunctive or other similar relief in the event of the breach or threatened breach of any of the provisions of these Terms. The language used in the arbitration proceedings will be English. You hereby agree that as part of the consideration hereof, you are hereby waiving any right you may have to a trial by jury for any Controversy. This provision shall be enforceable even in the case that the arbitration provisions or any other provisions of these Terms are waived

3. You agree that you may bring claims only in your individual capacity and not as a plaintiff or class member in any purported class or representative action.  You hereby agree that as part of the consideration for these terms, you are hereby waiving any right you may have to a trial by jury for any dispute between the Parties arising from or relating to these terms or the App.  This provision shall be enforceable even in the case that the arbitration provisions or any other provisions of this section are waived.

XIV. General Terms

1. Merger.  These Terms, as amended from time to time, constitute the entire agreement between you and us and supersede all prior agreements between you and us and may not be modified without our written consent.

2. Waiver.  Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right.

3. Severability.  If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid and unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.

4. Third Party Rights and Obligations.  Unless explicitly stated, nothing herein is intended, nor will be deemed to confer rights, remedies, obligations or liabilities upon any third party.

5. Assignment.  These Terms are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction.

6. Notice.  You agree that we may provide you with notices by e-mail, regular mail, or postings to the App.

7. Construction.  The section titles in these Terms are for convenience only and have no legal or contractual effect.  As used in these Terms, the term “including” is illustrative and not limitative.

8. Translations.  If these Terms or any other documents between you and us are translated and executed in any language other than English and there is any conflict as between the translation and the English version, the English version shall control.

9. Consumer Information.  Our name, address and email address is as follows: Cyberobics USA, LLC, 925 N La Brea Ave, 4th Floor, West Hollywood, California 90038, hello@cyberobics.com.  You may submit any complaints about our service to us at the foregoing addresses.  The Complaint Assistant Unit of the Division of Consumer Services of the Department of Consumer Affairs of California may be contacted in writing at 1625 North Market Blvd, Suite N 112, Sacramento, California 95834, by telephone at 800-952-5210, or via email to dca@dca.ca.gov.