Please read these Terms of Service (the “Agreement”) carefully. Your use of the Service (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and Aviron Interactive Inc. (“Aviron” or “we” or “us”) concerning your use of (including any access to) the online services that Aviron makes available for use through the exercise equipment that it makes available, and any mobile app(s) that Aviron makes available for use in connection with such equipment (the “App”) (collectively, together with any software, web pages, cloud services, content, and other materials and services available therein, and successor service(s) and app(s) thereto, the “Service”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Aviron through the Service, or otherwise made available to you by Aviron.
By using the Service, you affirm that you are of legal age to enter into this Agreement, or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement. Please note that separate age requirements may apply to use of any Aviron devices.
If you are an individual accessing or using the Service on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Service and to any such Organization. Please note that use of the Service by or on behalf of any Organization may also be subject to additional terms made available by Aviron from time to time, which are hereby incorporated by this reference into this Agreement.
This Agreement contains a mandatory arbitration provision that, as further set forth in Section 22 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Service following any changes to this Agreement will constitute your acceptance of such changes. We may, at any time and without liability, modify or discontinue all or part of the Service (including access to any part of the Service via any third-party links); charge, modify or waive any fees required to use any part of the Service; or offer opportunities to some or all Service users.
3. Jurisdictional Issues. The Service is controlled or operated (or both) from Canada, and is not intended to subject Aviron to any non-Canadian jurisdiction or law. The Service may not be appropriate or available for use in some non-Canadian jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Fitness-Related Content. The content and other material and services available through the Service may include instructional videos, exercise routines, exercise records and other media. You acknowledge and agree that Aviron is not a healthcare provider or fitness instructor; that the Service (including any recommendations and any information available through the Service that may be personalized) may not be appropriate for you, and does not constitute or replace medical advice; and that Aviron is not responsible for any results that may (or may not) be obtained from the use of the Service. You acknowledge and agree that it is your sole responsibility to consult with your personal physician regarding any medical condition, impairment or disability that may prevent or limit your ability to use the Service. You further understand and agree that you are solely responsible for abiding by your personal physician’s recommendation as to any such medical restrictions, and for using the Service solely in accordance with your personal physician’s advice.
Individuals under 10 years old are not permitted to use or access the Service. Minors who are at least 10 years old who can safely fit and use the Aviron equipment may use the Service with parent/guardian consent so long as the parent/guardian is present at all times during use.
5. Waiver. You understand that by using the Service, you may be exposed to a variety of hazards and risks, foreseen or unforeseen, including risks that arise as a result of entering a gym space or any other space or environment in which the Service is made available, performing physical activity, and/or using the equipment on which the Service is available. You understand that injuries or damage could occur by natural causes or activities of other persons, including the activities of other persons using such equipment, or other third parties (including third-party fitness instructors and other exercise participants), whether as a result of negligence or otherwise. To the fullest extent permitted by applicable law, you voluntarily assume all risk of loss, damage and injury to person or property that may arise from, or that is related to, your use of the Service, whether such risk is known or unknown to you.
You hereby waive and release Aviron and the Affiliated Entities (as defined below), to the maximum extent permitted by law, from any claim, action, suit or demand arising out of or in connection with the use of the Services (including with respect to any physical injury or death). You acknowledge that neither Aviron nor the Affiliated Entities will incur any obligation to you
under any legal theory (including negligence) as a result of your use of the Service. You agree that this release is binding upon you and your heirs, executors, administrators, successors and assigns.
6. Rules of Conduct. In connection with the Service, you must not:
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Service.
7. Products. The Service may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, “Products”), as well as references and links to Products. Such Products may be made available by Aviron or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Service of any listing, description or image of a Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Product.
8. Transactions. We may make available the ability to purchase or otherwise obtain certain Products through the Service (a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. You represent and warrant that you have the right to use any credit card that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner.
Aviron reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Product. Refunds and exchanges will be subject to Aviron’s applicable refund and exchange policies. You agree to pay all charges incurred by you or on your behalf through the Service, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Service. All Transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
9. Memberships. Certain features, functionalities and other aspects of the Services may be available only through a separate program (the “Membership Program”) for users with a valid membership. The fee for the Membership Program (the “Membership Fee”) is the amount currently identified at https://www.avironactive.com, plus any applicable taxes, and is non-refundable. Aviron may, in its sole and absolute discretion, change the Membership Fee from time to time.
The Membership Program is available for an initial term of one month or one year, with the Membership Fee payable on a monthly or annual basis. After the initial term, each membership will renew automatically, unless you cancel your membership. Unless you notify us before any such renewal date that you wish to cancel your membership or that you do not wish to automatically renew your membership, you understand and expressly agree that your membership will automatically continue for another term and you authorize Aviron (without notice to you, unless required by applicable law) to collect and charge the then-applicable Membership Fee and any applicable taxes, for each such renewal, using any payment card that Aviron has on file for you. You agree to provide Aviron with alternate payment card information if the payment card Aviron has on file for you is no longer valid, or if you choose to use a different payment card.
All memberships to the Membership Program are final. Except as otherwise required by applicable law, any paid Membership Fees (or payable Membership Fees for the remainder of an existing membership term) are non-cancellable and non-refundable. If you decide to cancel your membership, your membership will automatically expire at the end of your then-current membership term.
Each membership is associated only with a single, specific Aviron device, and cannot be used to enable any benefits of the Membership Program on any other Aviron device. A membership may permit the subscriber to create and manage additional user accounts, solely for family members and personal guests of the subscriber, that are permitted to use the benefits of the Membership Program on any Aviron device associated with a valid membership (“Additional Users”). Each Additional User must accept the terms and conditions of this Agreement prior to using the Service, and the subscriber will be responsible for all acts and omissions of each Additional User under the membership.
Aviron reserves the right, in its sole and absolute discretion, to exclude any individual(s) from the Membership Program or to terminate any membership, for any reason, including abuse of the Membership Program, failure to comply with this Agreement, or fraud, misrepresentation or other conduct detrimental to the interests of Aviron. Any such exclusion or termination may affect eligibility for further participation in the Membership Program. Enrollment and participation in the Membership Program are voluntary, optional and not required to complete any transaction or sale, including, but not limited to, any credit or debit card transaction.
Please note that if your membership expires or is cancelled or terminated, you and any Additional Users may no longer have access to any data, information or other content (including historical data, usage records, etc.) associated with your membership.
10. Registration; User Names and Passwords. You may need to register to use all or part of the Service. We may reject, or require that you change, any user name (which may be your e-mail address), password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Aviron, are responsible for choosing a secure password and for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Service account.
You are solely responsible for all use of the Service by any Additional Users and any other users who access the Service through you or your Aviron device.
11. Profiles and Forums. Service visitors may make available certain materials (each, a “Submission”) through or in connection with the Service, including on profile pages or on the Service’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. Aviron has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Service, you do so at your own risk.
12. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Service or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous and without restriction, and does not place Aviron under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Service, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
14. Aviron’s Proprietary Rights. We and our suppliers own the Service, which is protected by proprietary rights and laws, which includes our trade names, trademarks and service marks and any associated logos. All trade names, trademarks, service marks and logos on the Service not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
15. Third Party Materials; Links. Certain Service functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Aviron with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
17. Disclaimer of Warranties. To the fullest extent permitted under applicable law: (a) the Service and any Products and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) Aviron disclaims all warranties with respect to the Service and any Products and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title unless expressly noted in the Aviron Limited Warranty. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Aviron and its affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct or secure, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Service. If you become aware of any such alteration, contact us at firstname.lastname@example.org with a description of such alteration and its location on the Service.
18. Limitation of Liability. To the fullest extent permitted under applicable law: (a) Aviron will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Aviron will not be liable for damages of any kind resulting from your use of or inability to use the Service or from any Products or Third Party Materials, including from any Virus that may be transmitted in connection therewith, or from Aviron’s termination of this Agreement; (c) your sole and exclusive remedy for dissatisfaction with the Service or any Products or Third Party Materials is to stop using the Service; and (d) the maximum aggregate liability of Aviron for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of (a) the total amount, if any, paid by you to Aviron to use the Service within the twelve (12) months preceding the date of the applicable claim; and (b) ten U.S. Dollars ($10). All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Aviron and the Affiliated Entities, and their respective successors and assigns.
19. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Aviron and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) any use of, or activities in connection with, the Service (including all Submissions) by you, your Additional Users, and/or any other person who uses the Service through you or your Aviron device; and (b) any violation or alleged violation of this Agreement by you.
20. Termination. This Agreement is effective until terminated. Aviron may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if Aviron believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Service will immediately cease, and Aviron may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials.
21. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the Province of Ontario, without regard to its principles of conflicts of law, and regardless of your location. Except for disputes that qualify for small claims court, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and Aviron, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Aviron and you are each waiving the right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability or validity of the arbitration provision or any portion of the arbitration provision. All such matters shall be decided by an arbitrator and not by a court or judge.
You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.
22. Information or Complaints. If you have a question or complaint regarding the Service, please send an e-mail to email@example.com. You may also contact us by writing to 780 Birchmount Rd., Unit 16, Toronto, Ontario, M1K 5H4, Canada, or by calling us at 437-317-1199. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
23. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Aviron. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Aviron relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Aviron relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Aviron will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
24. Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Aviron in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Aviron’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.