ALTO - Terms of Service

PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.

Last Updated: February 19, 2019

These Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using our athletic performance data recording and management application (the “Software”), our websites (including the websites located at [X]) (the “Websites”), and on-line SaaS platform accessible via the Software (the “SaaS Services” and together with the provision of Software, Websites, and other BT services described in these Customer Terms, the “Services”). These Customer Terms govern your use of the Services and are entered into by you and BT on the earlier of: (a) the date you first use any part of the Services; and (b) the date you agree to be bound by these Customer Terms (the “Effective Date”). Please read these Customer Terms carefully.

 

Being a Customer

These “Customer Terms” Form a Part of a Binding “Contract”

These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding contract between Customer and us (these Customer Terms and the Order Form(s) (if any), as amended, are the “Contract”). “We,” “our”, “us”, and “BT” refers to BodiTrak Performance Ltd (Canada).

Your Agreement On Behalf of “Customer”

BY USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THESE CUSTOMER TERMS, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH THE “MODIFICATIONS” SECTION BELOW. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THESE CUSTOMER TERMS, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO BODITRAK THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO BODITRAK THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

Customer Choices and Instructions

Who is “Customer”?

“Customer” is the organization that you represent in agreeing to the Contract. If the Services are being used by someone who is not formally affiliated with an organization, Customer is the individual using the Services. For example, if you signed up using a personal email address and are monitoring your own performance or those of clients, or registered for an online education course, but haven’t formed a company yet, you are the Customer.

What This Means for Customer—and for Us

Individuals authorized by Customer to access the Services (an “Authorized User”) may submit content or information to the Services, such as messages or video/data recording files (“Customer Data”).

Customer will: (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure that the Customer Data will only contain information (including personal information) in respect of which Customer has provided all notices and disclosures (including to each Authorized User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable BT to provide the Services and exercise the rights granted to BT in these Customer Terms. Customer is responsible for each Authorized User’s use of the Services and compliance with these Customer Terms.

Ordering Subscriptions

A subscription allows an Authorized User to access the Services. No matter the role, a subscription is required for each Authorized User. A subscription may be procured through the sign-up page on the Websites or Services interface or via an order form entered into between Customer and us (each sign-up page or order form is an “Order Form”). Each Authorized User must agree to separate user terms (the “User Terms”) to activate their subscription. Subscriptions commence when we make them available to Customer and continue for the term specified in the Services “check-out” interface or in the Order Form, as applicable. To the extent that Customer exceeds the number of subscriptions or usage limits specified in the Order Form, we reserve the right to charge Customer incremental fees based on our then-current rates.

Purchasing Decisions

We may share information about our future product plans because we like transparency. Our public statements about those product plans are an expression of intent, but do not rely on them when making a purchase. If Customer decides to buy our Services, that decision should be based on the functionality or features we have made available today and not on the delivery of any future functionality or features.

Choosing to be a Beta Tester

Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products will be subject to these Customer Terms the terms “Software” and “SaaS Services” will be deemed to include such Beta Products as applicable, except that notwithstanding anything to the contrary in these Customer Terms the Beta Products are made available “as is” and any warranties or contractual commitments we make for other Services do not apply. Should Customer encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.

Feedback is Welcome

The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel. If we choose not to implement the suggestion, please don’t take it personally. We appreciate it nonetheless.

Non-BT Products; Separate Hardware Purchases

Our Services may include the ability to integrate third-party technology and data into the Services (each, a “Non-BT Product”). THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT NON-BT PRODUCTS. ANY USE OF A NON-BT PRODUCT IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER.

If a Non-BT Product is enabled, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-BT Product.

Our Services may require access to separate hardware or products (including our sensor-enabled mats) in order to receive data or otherwise provide certain functionality. Such hardware and products are provided under another agreement with separate pricing. You acknowledge that you may be required to purchase such separate hardware or products in order to use functionality provided by the Services offered under this Contract.

Privacy Policy

Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of the Services.

Customer and Authorized Users

Our Removal Rights; Suspensions

If we believe that there is a violation of the Customer Terms that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Non-BT Product, we may ask Customer to take direct action rather than intervene. However, we reserve the right to directly step in and suspend access to the Services or otherwise take what we determine to be appropriate action,  including in cases where we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties. We may also temporarily suspend access to the Services for scheduled or emergency maintenance.

Payment Obligations

Payment Terms

For Customers that purchase our Services, fees are specified in the Order Form(s) and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax. If any fees owed to us by Customer (excluding amounts that Customer disputes reasonably and in good faith prior to the applicable payment due date) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Services. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

Downgrade for Non-Payment

If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Services to free plans until those amounts are paid in full. Notwithstanding the second paragraph of the “Providing the Services” section below, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality and potential loss of access to Customer Data.

 

Our Responsibilities

Providing the Services

Customer isn’t the only one with responsibilities; we have some, too. We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or necessary for the performance of the Contract or otherwise expressly permitted by these Customer Terms.

Be assured that (a) the Services will perform materially in accordance with our then-current support materials; and (b) subject to the “Non-BT Products” and “Downgrade for Non-Payment” sections, we will not materially decrease the functionality of a Service during a subscription term. For any failure of a warranty in this section, as Customer’s exclusive remedy, Customer may terminate the Contract on notice to BT if such warranty failure is not cured within thirty (30) days after Customer provides notice of the failure. For avoidance of doubt, Customer will remain responsible for any fees payable for the Services until the effective date of termination.  

Protecting Customer Data

The protection of Customer Data is a top priority for us so we will maintain industry standard administrative, physical, and technical safeguards for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control (including all Customer Data stored locally on mobile devices). We are not responsible for what Customer’s Authorized Users or Non-BT Products do with Customer Data. That is Customer’s responsibility.

Ownership and Proprietary Rights

As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-BT Products created by or for Customer, only as reasonably necessary: (a) to provide, maintain and update the Services (including to run analytics and measure Authorized User performance); (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by ourPrivacy Policy; (d) to produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”); and (e) as otherwise expressly permitted in writing by Customer. You also acknowledge that we may use, process, store, disclose and transmit the Aggregated Data for any purpose. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users and any other parties to which such data relates as may be necessary to grant this license.

And What’s Ours is Ours; License Terms

We own and will continue to own: (a) the Services (including the Software and the Websites), (b) anything else provided or developed by or on behalf of us under this Contract; and (c) any modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations of or to the foregoing, including all related intellectual property rights therein and thereto. We make downloadable software components available, via app stores or other channels, as part of the Software. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these Software components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby reserved.

Customer must not itself, and will not permit others to: (a) sub-license, sell, rent, lend, lease or distribute the Software, Websites, or SaaS Services or any intellectual property rights therein or otherwise make the Software or SaaS Services available to others; (b) use the Software, Websites, or SaaS Services to permit timesharing, service bureau use or commercially exploit the Software, Websites, or SaaS Services; (c) use or access the Software, Websites, or SaaS Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the Software or SaaS Services; (d) use the Software, Websites, or SaaS Services to create, collect, transmit, store, use or process any Customer Data: (1) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (2) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (3) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (e) modify the Software, Websites, or SaaS Services; (f) reverse engineer, de-compile or disassemble the Software, Websites, or SaaS Services; (g) remove or obscure any proprietary notices or labels on the Software, Websites, or SaaS Services, including brand, copyright, trademark and patent or patent pending notices; (h) access or use the Software, Websites, or SaaS Services for the purpose of building a competitive product or service; (i) perform any vulnerability, penetration or similar testing of the Software, Websites, or SaaS Services; or (j) use or access the Software, Websites, or SaaS Services for any purpose or in any manner not expressly permitted in this Contract.

Term and Termination

Contract Term

As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

Auto-Renewal

Unless an Order Form says something different: (a) all subscriptions automatically renew (without the need to execute a renewal Order Form) for additional periods equal to one (1) year (unless specified otherwise); and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal before the end of a subscription term to stop the subscriptions from automatically renewing.

Termination for Cause

We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

Termination Without Cause

Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice. Paid subscriptions may not be terminated without cause by Customer or by BT.

Effect of Termination

Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination or expiration relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Upon termination or expiration, Customer and its Authorized Users must immediately cease using the Services and uninstall all local components of the Software.

Data Portability and Deletion

Following termination or expiration of a subscription, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. Please contact us for more information on how Customer itself can initiate deletion.

Representations Disclaimer of Warranties

Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND EXCEPT AS EXPRESSLY SET OUT IN THE “PROVIDING OUR SERVICES” SECTION, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

Limitation of Liability

OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER OR BODITRAK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.

IN NO EVENT WILL EITHER CUSTOMER OR BODITRAK HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE OR DATA OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND IN SOME JURISDICTIONS (INCLUDING QUEBEC) CUSTOMER MAY HAVE ADDITIONAL RIGHTS. IN NO EVENT WILL BODITRAK’S THIRD PARTY SUPPLIERS OR CONTRACTORS HAVE ANY LIABILITY UNDER THIS CONTRACT.

The Services support secure logins. Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. Notwithstanding anything to the contrary in this Contract, we will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services. Such limitations form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.

 

Customer’s Indemnification of Us

Customer will defend BT and its affiliates, employees, directors, contractors, representatives, and agents (collectively, the “BT Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the BT Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a BT Indemnified Party in connection with or as a result of, and for amounts paid by a BT Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us (provided that any such delay or failure will not limit Customer’s responsibility to indemnify us except to the extent that Customer is materially prejudiced by such delay or failure) and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the BT Indemnified Parties’ exclusive remedy against Customer for, any Claim Against Us.

Limitations on Indemnifications

Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

Confidentiality

Confidential Information

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer also includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

Protection and Use of Confidential Information

The Receiving Party will: (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party except to the extent required to perform its obligation or exercise its rights under this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors or pursuant to a merger or acquisition or the sale of a party’s shares or assets; provided, however, that the advisors or other persons are bound to confidentiality obligations at least as restrictive as those in the Contract.

Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please contact us for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

Survival

The sections titled “Feedback is Welcome,” “Non-BT Products; Separate Hardware Purchases,” “Our Removal Rights; Suspensions,” “Payment Terms,”  “And What’s Ours is Ours; License Terms,” “Effect of Termination,” “Data Portability and Deletion,” “Representations; Disclaimer of Warranties,” “Limitation of Liability,” “Customer’s Indemnification of Us,” “Limitations on Indemnifications,” “Confidentiality” and “Survival,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Contract.

General Provisions

Publicity

Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on the Websites and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. We don’t want to list customers who don’t want to be listed, so Customer may send us an email to hello@boditrakperformance.comstating that it does not wish to be used as a reference.

Force Majeure

Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

Relationship of the Parties; No Third Party Beneficiaries

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly provided herein, there are no third party beneficiaries to the Contract.

Email and Direct Messages

Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Customer through the Services (e.g., a push notification). Notices to BT will be sent to hello@boditrakperformance.com, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to legal@boditrakperformance.com. Notices will be deemed to have been duly given: (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

Modifications

As our business evolves, we may change these Customer Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions. Except as provided in this Section, all modifications and amendments (including amendments to the Order Form) will not be effective unless agreed to in writing by authorized representatives of each party.

Waiver

No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

Severability

The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.

Assignment

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying BT of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Entire Agreement

The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any); (2) the Customer Terms; and (3) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.

Choice of Law

This Contract and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles.  The Parties will initiate any lawsuits in connection with this Contract in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Contract. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

 

Construction

Except as otherwise provided in this Contract, the Parties’ rights and remedies under this Contract are cumulative.  The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Contract are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of BT in this Contract means the right of BT to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.

 

English Language

It is the express wish of the Parties that this Contract and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

 

Apple App Store Additional License Terms

If the Software is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of this Customer Terms:

(a)        The parties acknowledge this Customer Terms is concluded between you and us, and not with Apple. The responsibility for the Software and content thereof is governed by this Customer Terms.

(b)        You may use the Software only on an iPhone or iPod touch that you own or control.

(c)        You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Software.

(d)        In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Customer Terms.

(e)        Any claim in connection with the Software related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Customer Terms, and Apple is not responsible for such claim.

(f)         Any third party claim that the Software or your possession and use of the Software infringes that third party’s intellectual property rights will be governed by this Customer Terms, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

(g)        You represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

(h)        You may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Software.

Name: John Thorp

Address: BODITRAK SPORTS LLC, 383 Marshall Ave, Webster Groves, MO 63119.

Telephone Number: 1-855-733-0123

Email Address: hello@boditraksports.com

(i)         Apple are a third party beneficiaries to this Customer Terms and may enforce this Customer Terms against you.

(j)         If any of the terms and conditions in this Customer Terms are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.