Mobile Application End User License Agreement
This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and AVCSPORTDEV, LLC, a Florida limited liability company (“Company”). This Agreement governs your use of the KINETEX APP, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. FURTHERMORE, BY CLICKING THE “AGREE” BUTTON YOU REPRESENT AND WARRANT THAT YOU ARE EITHER (A) 18 YEARS OF AGE OR OLDER; OR (B) 13 YEARS OF AGE OR OLDER AND YOUR PARENT OR LEGAL GUARDIAN HAS REVIEWED AND AGREED TO THE TERMS OF THIS AGREEMENT ON YOUR BEHALF. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “AGREE” BUTTON AND DELETE THE APPLICATION FROM YOUR MOBILE DEVICE.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”); and
2. License Restrictions. Except as may be expressly permitted by applicable law and expressly authorized by this Agreement, you shall not:
(a) copy the Application;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
(f) use any robot, spider, or other automatic device, process, or means to access the Application for any purpose, including monitoring or copying any of the material on the Application;
(g) use any manual process to monitor or copy any of the material on the Application, or for any other purpose not expressly authorized in this Agreement, without Company's prior written consent;
(h) frame, mirror, or otherwise incorporate the Application or any portion of the Application as part of any other mobile application, website, or service;
(i) use the Application in any manner that could disable, overburden, damage, or impair the Application or interfere with any other party's use of the Application; or
(j) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly licensed to you in this Agreement.
(a) The Application or some parts of the Application are available only with a paid subscription. You will be billed in advance on a recurring periodic basis (such as monthly or annually), depending on the type of subscription plan you select when purchasing the subscription. At the end of each subscription period, your subscription will automatically renew under the exact same conditions unless you or Company cancels it.
(b) If your subscription was made through any application store or distribution platform (like the Apple App Store or Google Play) where the Application may now or in the future be made available (each, an “Application Store”), you can cancel the renewal of your subscription through the applicable Application Store. If your subscription was made through the Website (as defined in Section 6), you can cancel the renewal of your subscription through the Website. You will not receive a refund for the fees already paid for your current subscription period and you will be able to access the Application until the end of your current subscription period.
(c) If required to complete your purchase, you shall provide Company with accurate and complete billing information including full name, address, state, zip code, telephone number and valid payment method information. If automatic billing fails to occur for any reason, Company will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice. If the subscription has been made through an Application Store, all billing is handled by the Application Store and is governed by the Application Store's own terms and conditions.
(d) Company, in its sole discretion and at any time, may modify the subscription fees. Any subscription fee change will become effective at the end of the then-current subscription period. Company will provide you with reasonable prior notice of any change in subscription fees to give you an opportunity to terminate your subscription before such change becomes effective. Your continued use of the Application after the subscription fee change comes into effect constitutes your agreement to pay the modified subscription fee amount.
(e) Except when required by law or the applicable Application Store, paid subscription fees are non-refundable. If you wish to request a refund, you may do so by contacting the Application Store directly.
5. In-App Purchases. The Application may include the option to purchase products, items, services or subscriptions made through the Application (“In-App Purchases”). All In-App Purchases are subject to the terms of this Agreement and/or the Application Store's own terms and conditions. In-App purchases may only be consumed within the Application. If you make an In-App purchase, that In-App purchase cannot be cancelled after it has been completed. In-App Purchases cannot be redeemed for cash or other consideration or otherwise transferred. If any In-App Purchase is not successfully completed or does not work once it has been successfully completed, Company will, after becoming aware of the fault or being notified to the fault by you, investigate the reason for the fault. Company will act reasonably in deciding whether to provide you with a replacement In-App Purchase or issue you with a patch to repair the fault. In no event will Company charge you to replace or repair the In-App Purchase. In the unlikely event that we are unable to replace or repair the relevant In-App Purchase or are unable to do so within a reasonable period of time and without significant inconvenience to you, Company will authorize the Application Store to refund you an amount up to the cost of the relevant In-App Purchase. Alternatively, if you wish to request a refund, you may do so by contacting the Application Store directly. You acknowledge and agree that all billing and transaction processes are handled by the Application Store from where you downloaded the Application and are governed by that Application Store's own terms and conditions. If you have any payment related issues with In-App Purchases, then you need to contact the Application Store directly.
8. Geographic Restrictions. The Content and Services are based in the State of Florida in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
9. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
10. Assumption of Risk; Liability Waiver and Release.
(a) The Application may include or make available a variety of exercise, fitness, arm training, sports training, athletic performance training and other physical activity related instructional materials, whether written, verbal or provided in any other format (“Training Content”). Training Content is provided for educational and entertainment purposes only and is not a substitute or replacement for professional medical advice, diagnosis or treatment. If you have concerns about your health, you should always consult with a physician, general practitioner or other health-care professional before engaging in any activities included in the Training Content. Training Content can involve sustained and vigorous physical activity including bending, twisting, leaping, throwing, lifting heavy objects and other movements which place physical strain on the human body. Training Content may include using weights, resistance bands, exercise balls, footballs, baseballs, and other sports or fitness equipment. You understand and acknowledge that participation in activities included in the Training Content creates risks including, but not limited to, risks of bodily injury (including, but not limited to, fractures, concussions, strains and ligament tears), cardiac events, death and property damage. You understand and acknowledge that it is your responsibility to select an appropriate physical environment to participate in Training Content with sufficient room free of objects, obstacles and breakables to allow yourself to participate in activities included in the Training Content. You further acknowledge and understand that your own fitness and conditioning may affect your ability to engage in activities included in the Training Content and that you are solely responsible for the selection, quality and use of any training equipment.
(b) You confirm and acknowledge that there are risks associated with participation in activities included in the Training Content, including, but not limited to the risks set forth in Section 9(a) above. You acknowledge and agree that your participation in any activities included in Training Content is free and voluntary and you hereby assume and accept the risks of all injury, death, property damage or loss, financial obligation, loss of privacy, loss of reputation and all other injuries and consequences, whether known or unknown, whether foreseen or unforeseeable, and whether incurred at your residence or other locations, that may result, directly or indirectly from your participation in any activities included in Training Content, regardless of the cause.
(c) Notwithstanding anything to the contrary herein, you hereby waive and release Company and its officers, directors, managers, members, employees, agents, affiliates, successors, and assigns from any and all liability, claims, costs and expenses of any kind and of whatever nature that you or your heirs, next of kin or legal representatives may have or which may later accrue, caused by or arising directly from or indirectly from your participation in any activities included in the Training Content, including, without limitation, any injuries suffered while participating in any activities included in the Training Content, any injuries to other persons and any property damage that may occur as a result of your participation in any activities included in the Training Content.
11. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
12. Term and Termination.
(a) The term of Agreement commences when you click the “agree” button to acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this 11.
(b) You may terminate this Agreement by (i) deleting the Application and all copies thereof from your Mobile Device and (ii) cancelling your subscription to the Application. The effective date of the termination of this Agreement will be the end of your applicable subscription period.
(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity.
13. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
14. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER OR DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION DURING THE APPLICABLE SUBSCRIPTION PERIOD.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN THESE STATES, COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
15. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, managers, members, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to any content you submit or make available through this Application.
16. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
17. US Government Rights. The Application is a commercial product, consisting of commercial computer software and commercial computer software documentation, as such terms are defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
18. Access from Application Store. The following terms apply if you accessed the Application through or downloaded the Application from any Application Store. You acknowledge and agree that:
(a) This Agreement is between you and Company and not with the Application Store, and Company (not the Application Store) is solely responsible for the Application.
(b) The Application Store has no obligation to furnish any maintenance and support services with respect to the Application.
(c) In the event of any failure of the Application to conform to any applicable warranty, you may notify the Application Store, and the Application Store will refund the purchase price for the Application to you (if applicable) and, to the maximum extent permitted by applicable law, the Application Store will have no other warranty obligation whatsoever with respect to the Application. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
(d) The Application Store is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation.
(e) In the event of any third-party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, Company will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) The Application Store and its affiliates are third-party beneficiaries of this Agreement as related to your license to the Application, and that, upon your acceptance of this Agreement, the Application Store or its affiliates will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Application against you as a third-party beneficiary thereof.
(g) You represent and warrant that: (i) you are not located in a 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; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual or associated with an entity designated under the UK's Terrorist Asset-Freezing, etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules, whether applicable to you personally or to your location or other circumstances.
(h) You must also comply with all applicable third-party terms of service when using the Application.
19. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
20. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Miami and Miami-Dade County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
21. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE YOU HEREBY AGREE THAT SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
23. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
24. Contact Information. If you have any questions, complaints or claims with respect to the Application, you can reach Company using the contact information below:
Mailing Address: AVCSPORTSDEV, LLC 1860 SW 11th, ST Miami, FL 33135
Email Address: firstname.lastname@example.org