TERMS OF SERVICE

1. ACCEPTANCE OF TERMS

Pact, Inc. (GymPact) owns and operates the websites http://gym-pact.com and http://gympact.com (collectively, the Site). The Site, together with any software applications (including mobile applications) that are made available by GymPact (Apps), and together with all content, forums, information sharing functions (including the ability to post User-generated content, User Content), tools, transactions and other services available at the Site, are collectively referred to as the Service. Except certain aspects of the Service that may be available to Public Users, the Service is provided only to Clients (as such terms are defined below).

The following are the current terms and conditions for any and all use of the Service. The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein (Terms of Service). The Terms of Service shall be deemed to include all other operating rules, policies and procedures that are referred to herein or in any App or that may otherwise be published by GymPact at the Site from time to time (collectively, Policies), including without limitation, the following Policies:

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO ENTER INTO THIS AGREEMENT, THEN DO NOT DOWNLOAD ANY APP OR OTHERWISE ACCESS OR USE THE SERVICE IN ANY MANNER. COMPLETING THE REGISTRATION PROCESS, DOWNLOADING ANY APP OR OTHERWISE ACCESSING OR USING ALL OR ANY PART OF THE SITE OR SERVICE WILL CONSTITUTE ACCEPTANCE AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF SERVICE, WITHOUT MODIFICATION.

2. CHANGES

GymPact reserves the right, at its sole discretion, to modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. GymPact will use reasonable efforts to notify Users of any material change at least 30 days in advance of the effective date of any change. Change notices will be communicated by postings at the Site, via the Apps or, in the case of Clients, GymPact may also attempt to notify Clients by electronic mail. In any case, Users should periodically check the Terms of Service for changes. Continued use of the Service following any such notice of any change to the Terms of Service shall constitute User's acceptance of those changes. The Terms of Service may not otherwise be amended, except by a written agreement executed by User and GymPact.

GymPact may modify or terminate the Site, any App or other aspect of the Service, in whole or in part, at any time.

3. ELIGIBILITY

As used herein, the term User means you.

The Service is available only to individuals who are at least 18 years old who can form legally binding contracts under applicable law. You hereby represent and warrant to GymPact that you meet the foregoing qualifications. If you do not so qualify, you are prohibited from accessing, using or registering for the Service. In any event, GymPact will not collect personally identifiable information from any person that is actually known to us to be under the age of 13. If GymPact becomes aware that a person under 13 has provided personally identifiable information, it will take reasonable steps to remove such information and terminate the respective account.

Users include all registered and unregistered users that access or use the Site, any App or other aspect of the Service. Each User that properly completes the registration process shall be considered a Client for the purposes of the Terms of Service. Users that do not complete the registration process, or whose registration is not accepted, shall be considered Public Users. Public Users will have limited access to the Service, if at all.

GymPact may refuse to offer or continue offering the Service to any person and may change its eligibility criteria from time to time.

4. REGISTRATION

To become a Client, the User must complete the registration process by providing GymPact (or its service providers, like payment processors) with current, complete and accurate information, as more specifically required by the then current registration procedures. By way of illustration and not limitation: to register, prospective Clients may be required to specify a username and password, and to provide your name, address, zip code, legitimate electronic mail address and certain additional information (such as, for example, your preferred contact method and goods and services that may be of interest); in order to obtain certain aspects of the Service, Users may also elect to provide access information related to his or her accounts at social networking sites (such as, for example, Twitter, Facebook and MySpace); and in order to obtain certain Transaction services (such as, for example, in order to establish Pacts), Users will be required to provide valid credit card, bank account, PayPal account and/or mobile telephone account information for billing and rewards purposes. Clients shall maintain and update their registration data from time to time, to ensure that it is always current, complete and accurate. Users may apply for registration at http://gympact.com/signup. At its sole discretion, GymPact may refuse to accept any User's application to register as a Client.

Upon acceptance, GymPact will provide access credentials to the Client. Each Client is solely responsible for maintaining the confidentiality of his or her access credentials and other account information, and will be solely liable for any and all activities under Client’s account. Client agrees to notify GymPact immediately of any unauthorized use of Client's account or any other breach of security.

Multiple GymPact accounts are prohibited. Any individual User may only register for and maintain 1 GymPact account. In addition, each GymPact account may be associated with only 1 payment method as may be permitted by GymPact (e.g., credit card, bank account or mobile telephone account), and each GymPact account may be associated with only 1 method to receive rewards as permitted by GymPact (e.g., PayPal account).

5. PRIVACY

GymPact's current Privacy Policy is available at http://gympact.com/legal/privacy. Use of the Site, Apps and other aspects of the Service shall be subject to the then current Privacy Policy. GymPact will not edit, delete or disclose the contents of a User's data in connection with the Service unless (a) reasonably necessary to perform the Service, (b) authorized by the User, (c) otherwise permitted under the Privacy Policy or (d) GymPact reasonably believes that such action is necessary to conform or comply with any legal, regulatory, law enforcement or similar requirement or investigation, to protect or defend the rights or property of GymPact or any User or to enforce the Terms of Service.

GymPact will use social networking account information only for the purpose of providing the Service to the applicable Client, and GymPact will not otherwise attempt to obtain information from (or post information using) such accounts.

6. TRANSACTIONS

The Service may include the ability for Clients to incentivize their exercise programs and/or purchase other goods and services (collectively, Products) from GymPact, or from Site Affiliates or other third parties. Each Client agrees to strictly comply with and be bound by all requirements (including without limitation, any payment requirement or restriction on copying, redistributing or reselling any Product) that may be specified in respect of the purchase or sale of any Product (Transactions). GymPact is only responsible for Products and corresponding Transactions where GymPact provides the Products (Direct Products) to the User (Direct Transactions), and has no liability for Products or corresponding Transactions where any Site Affiliate or other third party provides the Products (Indirect Products) to the User (Indirect Transactions).

As a result of its limited role as an intermediary in Indirect Transactions, GymPact has no control over the validity, quality, risk or legality of any Indirect Product or the terms and conditions of any Indirect Transaction. Therefore, each Client agrees, in connection with any use of the Service related to any Indirect Transaction and any Indirect Product: (a) to release GymPact (and its licensors and suppliers) from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such use of the Service by such Client (including any disputes arising therefrom); and (b) to attempt to settle any disputes directly with the counter-party in any Indirect Transaction.

7. PACTS

Subject to the terms and conditions of its then current Pact Policy (which is available at http://gympact.com/legal/pacts), GymPact offers Clients the ability to incentivize their exercise programs by establishing separate contracts with GymPact (Pacts). Depending on whether or not the Client complies with his or her commitments made through the Pact, and subject to the other terms and conditions of the Pact Policy, the Client may be obligated to pay certain service fees to GymPact or, subject to the terms and conditions of its then current Rewards Policy (which is available at http://gympact.com/legal/rewards), the Client may be eligible to receive rewards from GymPact.

8. FEES AND PAYMENTS

Except as expressly provided otherwise in the Terms of Service, GymPact and each User is solely responsible for all of its costs and expenses related to the Service (including without limitation, the costs and expenses incurred by User in performing any Pact).

At this time, Users may access the Site, download Apps and use the Service without charge; except, however, Clients that enter into Pacts are obligated by the payment terms required by the Pact. In the future, GymPact may decide to charge for downloading Apps or accessing certain other features of the Service (or to change the price charged for such features), in which case Users will be notified of that change in accordance with Section 2. In that event, should User elect to download such Apps or access or subscribe to such features, User hereby agrees to pay all applicable fees, in the amounts, at the times and subject to the other payment terms described on the Site. Such fees may be specified on a recurring basis (e.g., subscription fees), non-recurring basis (e.g., one-time fees) or episodic basis (e.g., fees due upon occurrence of certain events).

The fee to consummate any Transaction and receive the corresponding Product will be established by GymPact (in the case of Direct Transactions, including Pacts) or by the Site Affiliate or other third party (in the case of Indirect Transactions). User hereby agrees to pay GymPact (or the Site Affiliate or other third party, as applicable) all fees arising out of each Transaction he or she enters into, in the amounts, at the times and subject to the other payment terms specified for such Transaction.

Unless specified otherwise, all amounts payable hereunder shall be paid when due in US dollars, in immediately available funds by credit card, electronic funds transfer from a bank account or charge to a mobile telephone account, in full without set- off, counterclaim or deduction. Any amount not paid when due shall bear a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, GymPact (or the Site Affiliate or other third party, as applicable) shall have the right to take whatever action it deems appropriate (including without limitation, suspending or terminating User's ability to access, use and/or benefit from the Service, Product or Transaction). User agrees to reimburse GymPact for all reasonable costs (including attorneys' fees) incurred in collecting payments. All payments to GymPact (or the Site Affiliate or other third party, as applicable) are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and User agrees to bear and be liable for the payment of all such charges (excluding taxes based upon the payee's net income).

9. FORUMS

The Site may include generally available or Client-controlled areas, which may include discussion forums, where Users may post User Content of interest to them (including without limitation, information related to any Transaction and corresponding Products). Discussion forums may be available to Public Users. User's ability to participate in any forum shall be subject to any eligibility criteria and other rules specified for such forum, and each User agrees to strictly comply with and be bound by all such requirements.

10. USER RULES AND CONDUCT

The Site, Apps, Pacts and all other aspects of the Service are provided to Users only for their personal, non-commercial use. Any unauthorized use of the Service (including without limitation, using any App, engaging in any Transaction or accessing any other aspect of the Service for which the User is not authorized, or any commercial use not related to a Transaction, such as, for example, reselling any content, information, App or Product to third parties) is expressly prohibited. Each Client is solely responsible for all acts or omissions that occur under his or her account, username or password, including Transactions and User Content posted to or transmitted via the Service.

As a condition of use, User hereby promises that he or she will not use the Service for any purpose (including without limitation, raising money or advertising or promoting any product, service or venture) that is unlawful or prohibited by the Terms of Service, or any other purpose not reasonably intended by GymPact. In connection with using the Service, User agrees to abide by all applicable local, state, national and international laws, regulations and rules. Without limiting the foregoing, Users shall not use the Service for the purpose of money laundering, bid rigging, price fixing or other unlawful collusion, price signaling or exchange of competitively sensitive data or information.

By way of example, and not limitation, User agrees not to upload, post, submit or otherwise distribute or facilitate distribution of any User Content (including text, communications, software, photographs, videos, sound recordings, data or other information), or take any other action, using any registration process, communications service, discussion forum, directory, survey, feedback, App or other service available on or through the Service that, in any manner:

  • is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another's privacy, tortious, obscene, profane or which otherwise violates the Terms of Service;
  • infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any party;
  • reveals any material, non-public information about any business;
  • reveals any personal information about another individual, including another person's name, address, phone number, electronic mail address, credit card information, bank account information, mobile telephone account information or any other information that could be used to track, contact or impersonate that person;
  • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming"), chain letters or any form of lottery or gambling;
  • imposes an unreasonable or disproportionately large load on GymPact's computing, storage or communications systems and networks, or attempts to gain unauthorized access to any App or other aspect of the Service, other accounts, technology platforms, computer systems or networks connected to the Service, through password mining or otherwise;
  • contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of GymPact or any Site Affiliate or other third party;
  • creates Client accounts by any automated means or under false or misleading pretenses;
  • harvests, scrapes or collects any information from the Site;
  • uses any script, bot or other automated means that only simulates compliance with the Terms of Service or other requirement applicable to the Service or any Transaction;
  • disguises the source of User Content posted by the User; or
  • impersonates any person or entity, including any employee or representative of GymPact or any Site Affiliate.

User agrees that he or she shall perform all of his or her payment and other obligations in respect of any Transaction entered into in connection with using the Service (including without limitation, pursuant to any Pact).

User agrees not to establish or maintain more than 1 GymPact account. If GymPact has reason to believe that any User has established or maintains more than 1 GymPact account, or has associated more than 1 payment method or rewards method with such User’s GymPact account, or has attempted to do so, then GymPact may, at its sole discretion, immediately suspend or terminate such User’s account(s), Pact(s) and/or access to the Service. GymPact reserves the right to recover from any User the amount of any rewards credited or paid to such User where GymPact has reason to believe such rewards accrued in connection with any violation of this provision (including without limitation, by deducting the amount of such rewards from User’s account balance, by charging the amount of such rewards to User’s credit card or by initiating legal action against User).

GymPact may, at its sole discretion, immediately suspend or terminate any User's access to the Service should his or her conduct fail (or appear to fail) to strictly conform to any provision of this section.

11. CONTENT

GymPact has no obligation to monitor the Service or any User's use thereof. However, GymPact reserves the right at any time and without notice to monitor, review, retain or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including without limitation, any inquiry from law enforcement).

GymPact does not undertake to pre-screen, authenticate, validate, monitor, moderate or edit any User Content. However, GymPact and its agents have the right, at their sole discretion, to remove at any time any User Content that, in GymPact's sole judgment, does not comply with the Terms of Service or otherwise appears illegal, harmful, objectionable or inaccurate. GymPact is not responsible for any failure or delay in removing any such content.

User shall not post any confidential content or other information that he or she desires or is obligated to keep secret.

Because GymPact does not review the substance of User Content or other communications via the Service, User must be careful in dealing with or relying on other Users to avoid fraud. User acknowledges that information provided by other Users may, despite the prohibitions set forth in the Terms of Service, be illegal, harmful, inaccurate or deceptive. Authentication of the true identity of Internet users is difficult, and so GymPact cannot and does not confirm that any User is the person who they claim to be.

12. THIRD PARTY SITES

The Service may permit Users to access the Service (including downloading Apps) from, and to link from the Service to, other websites on the Internet (including without limitation, to and from the websites of Site Affiliates). These other websites are not under GymPact's control, and User acknowledges and agrees that GymPact is not responsible for the accuracy, legality, appropriateness or any other aspect of the content or function of such websites. The inclusion of any such access or link does not imply endorsement of the other website by GymPact or any association with its operators. Additional or different terms and conditions may apply when Users are accessing and using such other websites.

13. PARTICIPATION IN PROMOTIONS OF AFFILIATES

Any dealings by Users with advertisers and other vendors (collectively, Site Affiliates) via the Service, or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between the User and the applicable Site Affiliate or other third party. GymPact is not responsible or liable for any part of any such dealings or promotions.

14. PROPRIETARY RIGHTS

User acknowledges and agrees that the Site, Apps, Service and all content and other materials created by or for GymPact and made available on the Site or via the Service are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and GymPact (and its licensors) shall own and retain all rights, title and interests (including without limitation, all intellectual property and proprietary rights) therein and thereto.

Unless and only to the extent expressly authorized by GymPact, User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of the Site, Apps, Service or such content and other materials. However, unless the Service otherwise restricts the Client from doing so, Client may download a copy of the Apps and print or download a reasonable number of copies of the content and other materials from the Site solely for the Client's personal, non-commercial purposes; provided, that GymPact (or the applicable User, in the case of User Content) retains all copyright and other intellectual property and proprietary rights contained therein. Systematic retrieval of data or other content from the Site by any User to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without GymPact's express prior written permission.

IMPORTANT: If User desires to make any use of any App or Site content for any purpose other than personal, non-commercial purposes, then User shall first secure permission from the owner of that content.

User shall not directly or indirectly (a) use any App or any content and other materials from the Site in preparing any software, platform, website or service that is similar to (or that replicates any functionality of) the Site, any App or other aspect of the Service or (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying organization, structures, ideas or algorithms of any App or Service platform (except and only to the extent these restrictions are expressly prohibited by applicable statutory law).

Reproducing, copying or distributing any App or content, materials or design elements from the Site for any other purpose is strictly prohibited without GymPact's express prior written permission. Attempting to access or use the Site, Apps, Service or content and other materials for any purpose not expressly permitted in the Terms of Service is prohibited.

If User provides GymPact with any description of errors or difficulties encountered in using the Service, or any assessment of the functions and performance of the Service, or suggested modifications, improvements and extensions to the Service (collectively, Feedback), then User agrees to assign and does hereby assign to GymPact all rights, title and interests (including patent rights, copyright rights and all other intellectual property and proprietary rights throughout the world) in and to all Feedback.

15. LICENSE TO GYMPACT

By uploading, posting, submitting or otherwise distributing User Content of any kind to GymPact, the Site or via any App or other aspect of the Service, User hereby:

  • agrees to grant and does hereby grant to GymPact and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, non-exclusive, royalty-free right and license (with right to sublicense), in all media (now known or hereafter developed), to use, reproduce, publicly display, publicly perform, adapt, collect, modify, delete from, distribute, transmit, promote and make derivative works of the User Content, in any form, solely for the purposes of offering, providing, operating, marketing and promoting the Site, any App and other aspects of the Service (including without limitation, being exported under content sharing arrangements with other websites); and
  • represents and warrants that all User Content includes appropriate attribution to the copyright owner; and
  • represents and warrants to GymPact that User owns or otherwise controls all rights to such User Content and that public disclosure and use of the User Content by GymPact (including without limitation, publishing content at the Site) will not infringe or violate the rights of any third party; and
  • acknowledges and agrees that the User Content is intended to and will be made available to and used by GymPact and other Users.

IMPORTANT: User agrees not to contribute any User Content unless User has all of the rights (including rights from the copyright owner) necessary to grant GymPact the use license, and to satisfy all of the warranty requirements, described above.

16. TERMINATION

GymPact may terminate User's access to or use of all or any part of the Service (including without limitation, any App) at any time, with or without cause, with or without notice, effective immediately. If Client wishes to terminate his or her registration and account, Client may do so at any time by going to Settings in their app and choosing "Delete account". Accounts cannot be deleted in the middle of an active Pact; those accounts will be deleted the following week.

Upon any termination, all rights and obligations of the parties shall cease and User shall immediately cease using the Service, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of the Terms of Service shall survive, (b) GymPact will reasonably cooperate with any terminated User in completing any Transaction entered into prior to termination and (c) the provisions of Sections 14 – 26 shall survive. After termination, GymPact has no obligation to maintain any content in Client's account, to make any payment to Client pursuant to any Pact or to forward any unread or unsent messages to Client or any other User or third party.

17. DISCLAIMER OF ALL WARRANTIES

THE SITE, APPS AND OTHER ASPECTS OF THE SERVICE, AND ALL PACTS AND OTHER TRANSACTIONS AND PRODUCTS MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED "AS IS" AND "AS AVAILABLE". THE SITE, APPS AND OTHER ASPECTS OF THE SERVICE, AND ALL PACTS AND OTHER TRANSACTIONS AND PRODUCTS MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. GYMPACT AND ITS AFFILIATES, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (A) THE SERVICE OR ANY PACT, PRODUCT, CONTENT OR OTHER INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED.

18. LIMITATION OF LIABILITY

User agrees that GymPact shall not be responsible or liable for any unauthorized access to, delay, alteration or use of User's account, transmissions or data, any material or data sent or received or not sent or received, or any Indirect Transaction entered into through the Service or any Indirect Product received pursuant to any Indirect Transaction. User agrees that GymPact is not responsible or liable for any threatening, defamatory, obscene, offensive, illegal or other content or conduct of any other User or third party or any infringement of another's rights, including intellectual property rights.

IN NO EVENT SHALL GYMPACT (OR ITS AFFILIATES, LICENSORS AND SUPPLIERS) BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE, APPS OR OTHER ASPECTS OF THE SERVICE (INCLUDING WITHOUT LIMITATION, PACTS AND OTHER TRANSACTIONS AND PRODUCTS MADE AVAILABLE THROUGH THE SERVICE), REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) DELAY, LOSS OR INACCURACY OF DATA, DELAY, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS PAID TO GYMPACT BY USER DURING THE PRIOR 3-MONTH PERIOD OR US$100.00, WHICHEVER IS GREATER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

19. INDEMNIFICATION

User agrees to (a) defend GymPact and its officers, directors, employees, contractors and representatives against any action or suit by a third party that arises out of any Indirect Product or Indirect Transaction (or any other dealings with any other User, Site Affiliate or other third party) in which User is involved, User's use or misuse of any aspect of the Service, or User's breach of any of his or her representations, warranties or covenants under the Terms of Service and (b) indemnify GymPact for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such a claim. GymPact reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will assist and cooperate with GymPact in asserting any available defense.

20. INTERNATIONAL USE

GymPact makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. Users that access the Service from other locations do so at their own initiative and are responsible for compliance with local laws.

21. DISPUTES; CHOICE OF LAW AND ARBITRATION

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. User and GymPact agree that any claim or cause of action arising out of or related to the Service must commence within one (1) year after the claim or cause of action arose; otherwise, such cause of action is permanently barred.

The Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, and the United States of America. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service.

Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or related to the Service or these Terms of Service that cannot be settled amicably by agreement of the parties shall be settled in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Boston, Massachusetts, USA. The proceedings and all evidence shall be in English, and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that this Agreement and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.

Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.

22. INTEGRATION AND SEVERABILITY

The Terms of Service (including the then current Policies) are the entire agreement between User and GymPact with respect to access, use and operation of the Site, Apps, Pacts and other aspects of the Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between User and GymPact with respect to the Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable.

23. GENERAL PROVISIONS

User's rights and obligations under the Terms of Service are personal to User, and are not assignable, transferable or sublicensable by User except with GymPact's prior written consent. GymPact may assign, transfer or delegate any of its rights and obligations hereunder without consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested, or by recognized express courier service; or when receipt is electronically confirmed, if transmitted by facsimile or e-mail.

24. COPYRIGHT AND TRADEMARK NOTICES

The Terms of Service, Apps and other content and materials provided by GymPact are copyright © 2011-2012 Pact, Inc. and/ or its licensors or suppliers.

GYM-PACT® is the registered trademark of GymPact, and GYMPACT™ is the trademark of GymPact. The names and logos of other companies and products mentioned at the Site may be the trademarks of their respective owners, and shall not be deemed to create any endorsement or association between GymPact and such other companies.

Any rights not expressly granted herein are reserved.

25. PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be made according to the instructions provided at http://gympact.com/legal/copyright (the Copyright Policy).

Pact, Inc.
650 Alabama Street, Suite 202
San Francisco, CA 94110, USA
Attn: Yifan Zhang

26. TERMS REQUIRED BY APPLE

In the event that User obtains any App through the Apple App Store, offered by Apple, Inc. (Apple), the following shall apply:

  • Both User and GymPact acknowledge that the agreements in the Terms of Service are concluded between User and GymPact only, and not with Apple, and that Apple is not responsible for the App;
  • User will only use the App in connection with an Apple device that User owns or controls;
  • User acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
  • In the event of any failure of the App to conform to any applicable warranty, including those implied by law, User may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to User will be to refund to User the purchase price, if any, paid for the App;
  • User acknowledges and agrees that GymPact, and not Apple, is responsible for addressing any claims User or any third party may have in relation to the App;
  • User acknowledges and agrees that, in the event of any third party claim that the App or User’s possession and use of the App infringes that third party’s intellectual property rights, GymPact, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
  • User represents and warrants that User is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that User is not listed on any U.S. Government list of prohibited or restricted parties;
  • Both User and GymPact acknowledge and agree that, in using the App, User will comply with any applicable third party terms of agreement which may affect or be affected by such use;
  • Both User and GymPact acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon User’s acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against User as the third party beneficiary hereof; and
  • In the event User uses the App to provide User with real-time route guidance, USER’S USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT USER’S SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.