END USER LICENSE AGREEMENT [EULA].
Last Revised: 12/18/2023
Effective Date: 01/01/2024
Welcome to the Gym Cube mobile application, which is owned and operated by The Gym Cube, LLC (Gym Cube) and its affiliates.
This End-User License Agreement (including any supplemental terms, as applicable) (“EULA” or “Agreement” or “Terms of Use”) governs your use and access of Gym Cube’s mobile and platform applications, including Gym Cube App (collectively “Applications”). The Applications are made available by, and you are entering into this EULA with The Gym Cube, LLC. The Applications, along with the fitness service and content made available therein are also referred to herein as the “Gym Cube Service” or “Service”. Any Service purchased hereunder is purchased from The Gym Cube, LLC and/or Gym Cube third party authorized platforms or vendors. By registering as a member or by accessing or using the Gym Cube Service in any way, you accept this Agreement, including any associated policies (including our privacy policies and any code of conduct policies).
By using the Service, you consent to receiving this Agreement in electronic form.
Notice to consumers: Depending on the laws of the jurisdiction where you live, you may have certain rights that cannot be waived through this EULA and that are in addition to the terms of this EULA, and certain provisions of this EULA may be unenforceable as to you. To the extent that any term or condition of this EULA is unenforceable, the remainder of the EULA shall remain in full force and effect.
Parties. The following Terms of Use and the associated Privacy Policy, as well as any other guidelines, rules or operating policies that Gym Cube may establish and post at the Applications from time to time, all of which are hereby incorporated by reference. All of the foregoing, which are collectively referred to also as party of the “Agreement,” set forth the terms and conditions of a legally binding contract between each visitor to and/or user of the Applications (together with any business, entity or organization each such visitor and/or user may be representing) (referred to as “you” or “your” or “User”) and The Gym Cube, LLC (“Gym Cube,” “we,” “our” and “us”).
Acceptance of Terms and Agreement to Be Bound. The Services are offered to you on the condition that you accept and agree to be bound by this Agreement in its entirety without modification of any kind. By accessing and/or using our mobile and platform Applications, you agree to be bound by this Agreement, whether you are a “Visitor” (which means that you simply browse one or more of our applications) or you are a “Registered User” (which means that you have registered to use the Applications and have subscribed to use one or more of the Services). If you do not accept the terms of this Agreement, you are not permitted to use the Applications and/or subscribe to the Services, and you are obliged to exit all the Applications and discontinue any and all use of the Applications and the Services immediately.
License Grant; Permitted Use. Subject to this Agreement, we grant each Registered User of the Applications a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) solely for purposes of using the Applications. You do not acquire any ownership rights in or to any of our intellectual property by accessing or using the Applications.
Medical Disclaimer. YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THE SERVICE OR ANY OTHER EXERCISE OR WEIGHT LOSS PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, HAVE A BONE OR JOINT PROBLEM OR OTHER MEDICAL CONDITION THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY OR DIET. DO NOT USE THE SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING OR FASTING, YOU SHOULD STOP IMMEDIATELY. THE SERVICE OFFERS GENERAL HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED ON THE APPLICATIONS OR AVAILABLE THROUGH ANY OF THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH- CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.
IF YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.
THE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND GYM CUBE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE APPLICATIONS WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
Eligibility. By accessing and using the Service, you acknowledge and agree that you are representing to us that you are 18 years of age or older and you are of legal age to form a legally binding contract, and you are not a person barred from purchasing or receiving products and services, under the laws of the United States or other applicable jurisdiction. Registration, subscription, access to and use of the Applications and the Services are not available to users under the age of 18 and are void where prohibited by applicable law.
Requirements for Becoming a Registered User. By completing the registration procedures displayed on the registration page(s) of the Applications, you acknowledge and agree that (a) you are representing to us that you are providing true, accurate, current and complete information about yourself as prompted by the registration form available on our Applications (the “Registration Data“), and (b) you are obliged to maintain and promptly update your Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account and refuse any and all current or future access to and/or use of the Applications and the Services (or any portion thereof).
Member Account, Password and Security. As a Registered User, you are required to choose a password, and provide your email address, and you may be asked for additional information regarding your account. You are responsible for maintaining the confidentiality and security of the password and all other account information, and you are fully responsible and liable for all access to and use of the Applications and the Services that occur under your password or account. You agree to (a) immediately notify us by e-mail to support@thegymcube.com of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you log out from your account at the end of each session. Gym Cube will not be liable for any loss or damage arising from your failure to comply with this section.
Preservation and Disclosure of Account Information and User Content. You acknowledge and agree that Gym Cube may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Gym Cube Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Gym Cube, the other users of the Applications and Services, and the public. However, under no other circumstances will Gym Cube intentionally disclose your account information to any third party except as otherwise provided in our Privacy Policy.
Security Components. You acknowledge and agree that the Applications and the Services, and the software embodied within the Applications and the Services, may include security components that permit digital materials to be accessed, used, and protected, and that use of these security components is subject to usage rules set by Gym Cube and/or content providers who provide content to Gym Cube. You may not attempt to override or circumvent any such security components and usage rules embedded in the Applications and the Services.
Membership Subscription Fees and Payment. Access to and use of the Membership Services is subject to a subscription fee (“Fee”). The Fee is payable in U.S. dollars or other currency as applicable. You will be required to provide your credit card number and other information at the time of your initial registration. Your credit card will automatically be charged at the time of your subscription or the end of your free trial, and regularly thereafter based on the terms of your subscription, and you hereby authorize Gym Cube to charge your credit card for the then-applicable subscription fee. The Fee is non-refundable except as provided in Section 21 below (“Term and Termination”). Gym Cube reserves the right to change or modify the Fee or payment schedule and the related terms of the mechanics of the payment of the Fee (including, without limitation, increasing prices and charging a fee for upgrades) at any time. If Gym Cube is for any reason unable to effect automatic payment via your credit card, Gym Cube will attempt to notify you via email and your account will be disabled until payment is received. You are responsible for notifying us of any changes to your credit card information and to update your information if your credit card has expired. Gym Cube may suspend, terminate and/or otherwise interrupt your access to the Services if you fail to so notify Gym Cube.
All Fees are exclusive of all excises, sales, use, transfer and other taxes and duties imposed with respect to the Services by any federal, state, municipal or other governmental authority, all of which taxes you are required to pay except for taxes based on Gym Cube’s net income. You are responsible for obtaining and providing to Gym Cube any certificate of exemption or similar document required to exempt any transaction from sales, use or similar tax liability.
You agree to pay your account balance on time. You are responsible and liable for any costs and expenses, including attorney and collection fees, that Gym Cube may incur in its efforts to collect any remaining balances due from you. This paragraph will in no way limit any other remedies available to Gym Cube. You are required to notify us of any billing problems or discrepancies within sixty (60) days after they first appear on your credit card account statement by sending a written notice to support@thegymcube.com. If you do not so notify us within the time allowed, you waive any right to dispute such problems or discrepancies.
For subscriptions completed in our iOS mobile application(s), the following terms apply:
Payment will be charged to iTunes Account at confirmation of purchase.
Subscription automatically renews unless auto-renew is turned off at least 24-hours before the end of the current period. Your cancellation will be effective as of the next billing date. As well all such subscriptions and renewals are subject to the applicable third party’s terms and conditions (e.g., Apple, etc.)
Account will be charged for renewal within 24-hours prior to the end of the current period and identify the cost of the renewal.
Subscriptions may be managed by the user and auto-renewal may be turned off by going to the user’s Account Settings after purchase.
11. Cancellation; Term and Termination; Account Deletion.
a. How to Cancel. If you are accessing the Gym Cube Service through a non-affiliated third-party application (including a mobile application such as iTunes), cancellation, uninstall and removal methods vary depending on your device or the marketplace through which you purchased or downloaded the Application. To uninstall and remove a Gym Cube mobile application, please use the application manager provided with your device or consult your device manual for reference. Additionally, if you purchased access or downloaded Applications through a third-party marketplace, cancellation and refunds may be governed by such third party’s cancellation and payment policies. If you purchased your subscription through the Apple Store or Google Play, you can cancel anytime by turning off auto-renewal through your iTunes account settings. This must be done 24 hours before the end of a free trial or subscription period to avoid being charged. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the free service.
b. Account Deletion. You may delete your account at any time. We reserve the right, but are under no obligation to, to delete an account from the Gym Cube Service that remains inactive (i.e., the user fails to log in) for a continuous period of at least six (6) months.
c. Termination for Breach. Gym Cube may, in its sole discretion, temporarily or permanently suspend, disable, or delete your account (or any part thereof) or block or remove any content you submitted if Gym Cube determines that you have violated any provision of this Agreement or that your conduct or content would tend to damage Gym Cube’s reputation or goodwill. If Gym Cube deletes your account for the foregoing reasons, you may not re-register for the Gym Cube Service. Gym Cube may block your email address and Internet protocol address to prevent further registration. Gym Cube is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account. After your membership or subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
d. Effect of Termination/Account Deletion. Upon termination, all licenses granted by Gym Cube will terminate. In the event of account deletion for any reason, content that you submitted may no longer be available. Gym Cube shall not be responsible for the loss of such content.
12. Content. The content available at the Applications and the Services generally consists of (a) content owned by Gym Cube, including but not limited to the trademarks, trade dress and “look and feel” of the Applications and content created and/or acquired and owned by Gym Cube (“Gym Cube Content”), (b) content owned by third parties and licensed to Gym Cube for specified uses on the Applications and the Services (“Third-Party Content”), and (c) content that may be posted and/or otherwise uploaded to the Applications and/or the Services by you (“User Content”). As between you and other Registered Users, however, the content posted by other Registered Users is considered “Third-Party Content.” All of the foregoing is collectively referred to as “Site Content.”
13. Geographic Limitations. Due to certain licensing restrictions placed on our titles, some content may not be available in your geographic location, and therefore, cannot be viewed. If at any time you feel this inhibits your experience upon purchasing a Gym Cube subscription, please contact our customer service department and we will work with you in order to remedy the situation. You can reach customer service by email at support@thegymcube.com.
14. Prohibited Conduct. The Applications and the Services may include features that permit you to post User Content, which includes and applies to (but is not limited to) content of your own, comments on the User Content posted by other Registered Users, and communications with other Registered Users. Such User Content includes but is not limited to information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials. You acknowledge and agree that you shall not use the Applications and/or the Service to post or other transmit User Content that:
is patently offensive and/or promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual;
harasses or advocates harassment of another person;
exploits people in a sexual or violent manner;
contains nudity, violence, or offensive subject matter;
solicits personal information from anyone under the age of eighteen (18);
provides any telephone numbers, street addresses, last names, or email addresses of anyone other than your own;
promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
violates any intellectual property or other proprietary right of any third party, including User Content that promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
solicits passwords or personal identifying information for commercial or unlawful purposes from other Members;
involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes;
includes a photograph of another person that you have posted without that person’s consent or, in the case of children under the age of eighteen (18), parental consent, or otherwise constitutes an invasion of an individual’s privacy or infringement of publicity rights; or
contains a virus or other harmful component.
15. Reservation of Rights. Gym Cube Content and Third-Party Content are protected by copyright, trademark, patent, trade secret and other laws. Gym Cube and its third-party licensors own and retain their respective rights, title, and interest in and to their respective content subject only to the limited licensed granted to Registered Users as set forth above.
You acknowledge that the Gym Cube Applications and Services contain software, graphics, photos, videos, know-how, product ideas, comments, and other material (collectively, “Content”) that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Gym Cube-generated content and content developed for Gym Cube by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, Gym Cube owns a copyright in the selection, coordination, arrangement, and enhancement of all Content on the Gym Cube Applications. Subject to your compliance with this Agreement, and solely for so long as you are permitted by us to access and use the Services, you may download one copy of the application (but never the Content) to any single computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices and are in compliance with this Agreement. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.
The Gym Cube name, logos and affiliated applications and technologies are the exclusive property of Gym Cube, Inc. All other trademarks appearing on the Applications and Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Applications and Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Gym Cube owns and retains all proprietary rights in the Applications and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Applications or through the Service, without first obtaining the prior written consent of Gym Cube or, if such property is not owned by Gym Cube, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
16. Other Applications. The Applications may contain third-party advertising and/or links to websites owned by third parties (i.e., advertisers, affiliate partners, strategic partners, or others). However, the inclusion of a link in any of our applications does not imply Gym Cube’s investigation, evaluation and/or endorsement of such third-party website. We are not responsible for examining or evaluating, and we do not warrant the products or offerings of, any of these businesses, entities or individuals, or the accuracy of the content of their advertising or websites. Gym Cube does not assume any responsibility or liability for the actions, products, services, and/or content of any such websites. Before you purchase goods or services from a third party and/or use any third-party website, you should review the applicable terms of use and privacy policies for such websites. If you decide to access any such linked websites, you do so at your own risk.
17. Registered User Disputes. You are solely responsible for your interactions with other Registered Users. Gym Cube reserves the right, but has no obligation, to monitor disputes between you and other Registered Users.
18. Warranty Disclaimer.
The Applications and/or the Services are provided “AS IS” and on an “AS AVAILABLE BASIS”. To the extent permitted by law, Gym Cube and our affiliates, parents, and successors and each of our and their members, employees, assignees, officers, agents and directors (collectively, the “Gym Cube Parties”) (i) disclaim all warranties and terms, express or implied, with respect to the Applications and Services, including warranties, terms or representations as to the availability, operation, performance and/or use of the Applications and/or the Services, or any other services or materials on or accessed via the Applications and/or the Services, including any warranties or terms of merchantability, fitness for a particular purpose, title, non-infringement and any implied warranties, terms or indemnification arising from course of dealing, course of performance or usage in trade and (ii) will not be liable for any indirect, special, incidental, exemplary, punitive or consequential damages, business interruption or loss of profits, or damages for lost time, goodwill or data, even if advised of the possibility of such damages and regardless of the form of action, whether in contract, tort, strict liability or otherwise. To the extent permitted by law, you, on your own behalf and on behalf of your employees, agents, guests and invitees, (i) waive any and all claims, liabilities, costs, damages, expenses and rights, including reasonable attorneys’ fees (“Claims”) against the Gym Cube Parties resulting from your use of the Applications and/or the Services and (ii) release the Gym Cube Parties from any such Claims; provided, however, that such waiver of claims shall not apply to the extent such Claims arise from the gross negligence, willful misconduct, or fraud of the Gym Cube Parties. You shall and hereby do waive your rights under the law of any jurisdiction, which provides in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or settlement with the debtor or released party.”
19. Limitation of Liability. To the fullest extent permitted by applicable laws, the Gym Cube Parties will in no event be liable to you or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from or in connection with any use of the Applications and/or the Services, and/or any website with which they are linked, and/or any content, information, products or services accessible through the Applications and/or the Services, even if any of the Gym Cube Parties have been advised of the possibility of such losses or damages.
AS NOTED HEREIN NEITHER GYM CUBE, NOR ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, SHALL GYM CUBE ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APPLICATIONS AND/OR THE SERVICES, THE APPLICATIONS’ MATERIALS, THE SERVICES OR ANY USER CONTENT;
UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APPLICATIONS;
BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPLICATIONS BY ANY THIRD PARTY; AND/OR
EXCEPT FOR LIABILITY ARISING OUT OF GYM CUBE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ERRORS OR OMISSIONS IN ANY CONTENT MADE AVAILABLE BY GYM CUBE OR OUR USERS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATIONS AND/OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVENT SHALL GYM CUBE’S AGGREGATE LIABILITY EXCEED $100.00. THIS ALLOCATION OF RISK UNDER THESE TERMS IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS SHALL BE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS SET FORTH IN THESE TERMS. THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN YOU AND GYM CUBE. THIS ALLOCATION IS REFLECTED IN PRICING OFFERED BY GYM CUBE TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GYM CUBE. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
20. Indemnity. You agree to indemnify, defend, and hold harmless the Gym Cube Parties from any and all third-party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your breach of the terms of this Agreement, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Gym Cube will use its reasonable best efforts to notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
21. Term and Termination. This Agreement begins on the date you first use the Gym Cube Service and continues as long as you have an account with us. This Agreement, as it may be modified from time to time, shall remain in full force and effect for so long as it is posted on any of the Applications or until terminated by Gym Cube or by you. You may terminate your status as a Registered User and cancel your account at any time and for any reason, by notifying us by email at support@thegymcube.com, but any such termination and cancellation will be effective only after Gym Cube has processed the request. If you cancel your account prior to the expiration of your pre-paid subscription period, you will forfeit the Fees paid for any unused portion of your subscription, which are non-refundable. However, you will be able to continue viewing premium content until the expiration of your current pre-paid subscription period. You also acknowledge and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with Gym Cube.
Gym Cube reserves the right to suspend or terminate your status as a Registered User, cancel your account, and disable your access to the Applications and Services at any time, with or without notice to you, with or without cause, and without liability to you. Gym Cube shall have no liability to you or any third party because of such suspension or termination or related action for any reason except as follows: (a) If Gym Cube elects do so with cause, then no refund of any unused portion of a pre-paid subscription is owing, and (b) if Gym Cube elects to do so without cause, then Gym Cube will refund any unused portion of a pre-paid subscription.
Upon suspension or termination, Gym Cube shall have no obligation to save any User Content that you may have posted or otherwise provided, and we reserve the right to permanently delete and destroy any of your personal information and/or User Content.
22. Survival. The provisions of this Agreement including but not limited to sections 2, 4, 8, 10, 11, 14, 15, 18, 19, 20, and 25(a-n) shall survive the termination of this Agreement, your account, and/or your use of the Service to the extent necessary to effectuate the terms contained herein.
23. Apple App Store. By accessing the Service through a device made by Apple, Inc. (“Apple”), you specifically acknowledge and agree that:
This EULA is between Gym Cube and you; Apple is not a party to this EULA.
The license granted to you hereunder is limited to a personal, limited, non-exclusive, non- transferable right to install the mobile applications on the Apple device(s) authorized by Apple that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Apple’s App Store Terms of Service.
Apple is not responsible for the mobile applications or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the mobile applications.
In the event of any failure of the any mobile application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to any Application.
Apple is not responsible for addressing any claims by you or a third party relating to any Application or your possession or use of an Application, including without limitation (a) product liability claims; (b) any claim that an Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. In the event of any third-party claim that an Application or your possession and use of an Application infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement, or discharge of such intellectual property infringement claim.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. Apple and its subsidiaries are third party beneficiaries of this EULA and upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third-party beneficiary hereof.
Gym Cube expressly authorizes use of the mobile apps by multiple users through the family sharing or any similar functionality provided by Apple.
24. Google Play Store. By accessing the Service through a device made by Google, Inc. (“Google”), you specifically acknowledge and agree that:
This EULA is between Gym Cube and you; Google is not a party to this EULA.
The license granted to you hereunder is limited to a personal, limited, non-exclusive, non- transferable right to install the mobile applications on the Android device(s) authorized by Google that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Google Play’s Terms of Service.
Google is not responsible for the mobile applications or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the mobile applications.
In the event of any failure of the any mobile application to conform to any applicable warranty, you may notify Google, and Google will refund the purchase price for the Application, if any, to you. To the maximum extent permitted by applicable law, Google will have no other warranty obligation whatsoever with respect to any Application.
Google is not responsible for addressing any claims by you or a third party relating to any Application or your possession or use of an Application, including without limitation (a) product liability claims; (b) any claim that an Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. In the event of any third-party claim that an Application or your possession and use of an Application infringes such third party’s intellectual property rights, Google is not responsible for the investigation, defense, settlement, or discharge of such intellectual property infringement claim.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. Google and its subsidiaries are third party beneficiaries of this EULA and upon your acceptance of the terms and conditions of this EULA, Google will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third-party beneficiary hereof.
Gym Cube expressly authorizes use of the mobile apps by multiple users through the family sharing or any similar functionality provided by Google.
25. Miscellaneous.
a. Amendment. We may amend this Agreement from time to time. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means. You acknowledge that an in-app message or an email to the email address provided at registration, which notifies you of such changes, shall constitute reasonable means. Your continued use of the Applications and/or the Services after we post any amendments to this Agreement will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue your access to and use of the Service.
b. No Waiver. The failure of Gym Cube to exercise or enforce any right and/or remedy under this Agreement shall not constitute a waiver of such right and/or remedy.
c, Section Headings. Section and subsection headings are for convenience only, and not for use in interpreting this Agreement.
d. Statute of Limitations. You acknowledge and agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Applications, the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
e. Relationship of the Parties. You and Gym Cube acknowledge and agree that they are independently contracting parties dealing at arm’s length with each other in connection with the licensing of intellectual property rights and the provision of services. No partnership, joint venture, joint authorship, employment, fiduciary, agency, or other relationship is created between them.
f. Binding on Successors. This Agreement shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors and/or assigns of the parties, as applicable. For avoidance of doubt, you acknowledge and agree that Gym Cube is fully authorized to assign, sublicense and/or otherwise convey and transfer this Agreement and/or any of its rights under this Agreement at any time, in its sole and absolute discretion, and without compensation of any kind to you.
g. You Agree to Cooperate with Us. From time to time, we may investigate any actual, alleged or potential violations of this Agreement. You agree to cooperate fully in any of these inquiries. You waive any and all rights against the Gym Cube Parties and agree to hold them harmless in connection with any claims relating to any action taken by us as part of our investigation.
h. Governing Law. This Agreement and the relationship between you and Gym Cube shall be governed by the laws of the State of North Carolina without regard to its conflict of law provisions.
i. Agree to Arbitrate: Except as otherwise expressly set forth herein, any controversy arising out of or relating to this Agreement, or the breach of this Agreement, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction. The prevailing party shall be entitled to all costs of arbitration including, but not limited to, reasonable attorneys’ fees. The parties further agree that they shall be entitled to discovery in the same manner as though the dispute were within the jurisdiction of the State of North Carolina and that the statute of limitations shall be applied in the same manner as provided for in this Agreement. The parties agree that all arbitration shall be conducted in Pender County, North Carolina.
j. Entire Agreement. This Agreement, together with any other terms and conditions referenced herein (including without limitation the Privacy Policy and Additional Terms), constitutes the entire agreement between you and Gym Cube and governs your use of the Applications and/or the Services, superseding any prior agreements between you and Gym Cube with respect to the Applications and/or the Services.
k. Severability. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you. In any such case, and/or if any terms or conditions of this Agreement are held to be invalid for any reason whatsoever, this Agreement shall remain in full force and effect on its remaining terms and conditions of this Agreement unless and until terminated by Gym Cube. Furthermore, if any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the intentions of the parties as reflected in the invalidated provision.
l. Related Agreements. You acknowledge that your use of the Applications and/or Services are also subject to our Privacy Policy. Occasionally, additional features, tools or services may be made available to you through the Applications. Additional terms may apply to such additional services, and to the extent you are receiving any additional services, the applicable additional terms are hereby incorporated into this Agreement.
m. Contact; Notices and Questions. If you have any questions regarding this Agreement, please contact us by email at support@thegymcube.com, or by mail at The Gym Cube, LLC, 146 Heron Cove Rd, Hampstead, NC 28443. Except as otherwise specified elsewhere in this Agreement, notices to Gym Cube may be given at the foregoing email and postal addresses, and notices to you may be given at the address provided to us at the time of registration and/or the purchase of goods and services from Gym Cube.
n. Additional Terms. We may also require you to follow additional rules, guidelines or other conditions (“Additional Terms”) in order to participate in certain promotions or activities available through our applications, to obtain certain premium Site Content through our Applications, and/or for other reasons. In addition, certain Additional Terms will govern your subscription to the Services and any purchases you make through the online store. These Additional Terms will be posted on the relevant portions of our applications or on the portions of our applications that describe the specific promotions, Content, or activities. These Additional Terms are incorporated by reference in this Agreement, and you agree to comply with them when you participate in those promotions, purchase items from our online stores, or otherwise engage in activities governed by such Additional Terms.
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