Acroninja Terms of Service
These Terms of Service were last updated on Dec 15, 2019.
These Acroninja Terms of Service (the "Agreement") are an agreement between the person visiting, browsing, accessing, downloading, installing or otherwise using (the terms "use" and "using" will refer to any of the foregoing) the Acroninja Services (such person, the "Customer") and Acroninja, Inc. ("Acroninja", Acroninja and Customer, the "Parties" and each, a "Party"), and is entered into the earlier of: (a) the date Customer first uses any part of the Acroninja Services; and (b) the date Customer agrees to be bound by this Agreement (the "Effective Date").
Acroninja offers a software-as-a-service product and a mobile device software application (the "Application") that provides access to work-out plans used by top athletes and other related fitness services, as may be changed from time to time by Service Provider and as more fully described on the Website (collectively, the "Acroninja Services").
BY USING THE ACRONINJA SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE ACRONINJA SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO ACRONINJA THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.
"Acroninja Services" has the meaning set out in the introductory paragraphs to this Agreement.
"Acroninja Software" means Acroninja software product made available under the name "Acroninja", and any updates provided as part of the Acroninja Services.
"Customer Data" means any data, information, content, records, and files that Customer loads, receives through, transmits to or enters into the Acroninja Services.
"Fees" has the meaning set out in Section 7.
"Modifications" means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and "Modify" has a corresponding meaning.
"Personal Information" means information about an identifiable individual.
"Post-Term Period" has the meaning ascribed to it in Section 12(d).
"Technical Support Services" means the support services described in Section 7.
"Term" has the meaning set out in Section 11(a).
"Website" means any websites used by Acroninja to provide the Acroninja Services.
"Usage Data" has the meaning ascribed to it in Section 2(e).
Provisioning of the Acroninja Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Acroninja will make the subscribed Acroninja Services available to Customer on the terms and conditions set out in this Agreement.
Restrictions on Use. Customer must not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Acroninja Services or any intellectual property rights therein or otherwise make the Acroninja Services available to others;
- use the Acroninja Services to permit timesharing, service bureau use or commercially exploit the Acroninja Services;
- use or access the Acroninja Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the Acroninja Services, or for any purpose or in any manner not expressly permitted in this Agreement;
- use the Acroninja Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- 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);
- modify the Acroninja Services;
- reverse engineer, de-compile or disassemble the Acroninja Services;
- remove or obscure any proprietary notices or labels on the Acroninja Services, including brand, copyright, trademark and patent or patent pending notices;
- access or use the Acroninja Services for the purpose of building a similar or competitive product or service; or
- perform any vulnerability, penetration or similar testing of the Acroninja Services;
Suspension of Access; Scheduled Downtime; Modifications. Acroninja may, at its discretion:
- suspend Customer’s access to or use of the Acroninja Services or any component thereof:
- for scheduled maintenance;
- if Customer violates any provision of this Agreement; or
- to address any emergency security concerns; and
- Modify the AcroYogaTutorials Services.
- Customer is required to accept all patches, bug fixes and updates made by or on behalf of Acroninja to the Acroninja Services.
Licensed Third Party Technology. The Acroninja Services may contain or require the use of Licensed Third Party Technology. Customer will accept and comply with the license terms applicable to Licensed Third Party Technology. Except for Licensed Third Party Technology expressly identified in this Agreement as provided by Acroninja, Customer is responsible for separately obtaining or licensing such technology. Acroninja reserves the right to modify the functionality of the Acroninja Services if Licensed Third Party Technology is no longer available on reasonable terms.
Ownership; Reservation of Rights
(b) Acroninja or its licensors retain all ownership and intellectual property rights in and to: (i) the Acroninja Services; (ii) anything developed or delivered by or on behalf of Acroninja under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
(c) All rights not expressly granted by Acroninja to Customer under this Agreement are reserved.
Customer User Account
Acroninja will issue an account (a "Customer User Account") to Customer. Customer will only use the Acroninja Software and Acroninja Services through the Customer User Account. Customer will not share the Customer User Account or any information obtained through the Customer User Account with any other person. Customer will promptly notify Acroninja of any actual or suspected unauthorized use of the Acroninja Software or Acroninja Services. Acroninja reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
Acroninja uses service availability monitoring equipment to monitor the Acroninja Services on a 24 hours a day, 365 days a year basis. Customer will generally have access to Acroninja technical support from 10 AM to 6 PM PST Monday through Friday (excluding statutory and civic holidays observed in Canada and the United States): (i) via email at TarzanandSprout@AcroNinja.com Customer will consult the documentation and trouble-shooting information made available by Acroninja (including on the Website) prior to contacting Acroninja for support. Acroninja reserves the right to limit Customer's access to support if Customer does not comply with these terms or uses an excessive amount of support.
Fees and Payment
Fees. Fees for the Acroninja Services are described on the Website and in the Application (the “Fees”) and are payable based on the frequency identified in the subscription plan that Customer selects. Customer will pay the Fees owed by Customer (including any additional fees for Customer’s use of the Acroninja Services identified to Customer in advance) in accordance with this Agreement. Unless otherwise noted, all Fees are payable in advance.
Automatic Payment. Unless Customer provides Acroninja with reasonable notice, upon renewal of Customer’s subscription pursuant to Section 11(a), Customer authorizes Acroninja third party processors to charge the debit card, credit card or other payment account on file for Customer for the same subscription plan (or the most similar subscription plan if Customer’s subscription plan is no longer available) at the then current subscription Fees plus any applicable taxes. Unless otherwise requested by Customer, Acroninja will process Customer payments using the same billing cycle as Customer’s current subscription.
Changes to the Fees. While Acroninja does not anticipate that it will increase Fees for existing customers, Acroninja reserves the right to change the Fees and institute new charges upon providing not less than 60 days prior notice to Customer.
Cancellation; Refunds. Customer may cancel the Acroninja Services and request a refund of the Fees paid by Customer within 48 hours of signing up for such Acroninja Services by contacting Acroninja as described in this Section, in which case the subscribed Acroninja Services will immediately terminate as of the date that Acroninja provides such refund. If Customer chooses to cancel the Acroninja Services, Customer must submit a cancellation request via email to TarzanandSprout@AcroNinja.com. Any cancellation made after the 48 hour period described in the first sentence will become effective as of Customer’s next payment period and Customer will continue to receive the Acroninja Services paid for by Customer until such date. Any cancellation made less than 24 hours prior to the scheduled payment period termination date will become effective as of Customer’s next payment period, and Customer will continue to receive the Acroninja Services paid for by Customer until such date. While Acroninja is under no obligation to do so, in certain limited circumstances Acroninja may in its sole discretion provide Customer with a pro rata refund of the Fees following the 48 hour period described above, in which case the subscribed Acroninja Services will immediately terminate as of the date that Acroninja provides such pro rata refund.
Disputed Invoices or Charges. If Customer believes Acroninja has charged Customer incorrectly, Customer must contact via TarzanandSprout@AcroNinja.com Acroninja within a reasonable time after having been charged by Acroninja in order to request an adjustment or credit, and Acroninja will review any identified charges upon notice from Customer. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Acroninja reserves the right to suspend Customer’s access to the Acroninja Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any).
Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Acroninja.
Suspension. Any suspension of the Acroninja Services by Acroninja pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
Third Party Payment Processors. Customer will pay the Fees using a valid credit card, debit card or other payment account (e. g. PayPal) accepted by Acroninja. By using the Acroninja Services, Customer authorizes Acroninja’s third party payment processor to post a pre-authorized charge for the Fees and to charge Customer’s credit card, debit card or other payment account for the Fees. The Fees do not include any payment processing fees assessed by Acroninja’s third party payment processors for which Customer will be solely responsible. By using the Acroninja Services, Customer authorizes Acroninja’s third party payment processors to deduct and send directly to Acroninja any amounts owed to Acroninja pursuant to this Agreement. Third party payment processors are not subcontractors or agents of Acroninja and any disputes between Customer and a third party processor regarding any payments or lack thereof are between Customer and the third party payment processor. Acroninja and its third party payment processors are not responsible for the transmission or processing of any payments Customer makes pursuant to its use of the Acroninja Services. Customer’s use of the payment services provided by Acroninja’s third party payment processors may be subject to additional terms and conditions made available to Customer by such payment processors.
Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Acroninja, to potential assignees, acquirers or successors of Acroninja if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Acroninja.
Deletion of Confidential Information. Within 30 days of the expiration or termination of this Agreement, Customer will return or destroy Acroninja’s Confidential Information.
Warranty; Disclaimer; Indemnity
Customer Warranty. Customer represents and warrants to, and covenants with Acroninja that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Acroninja to provide the Acroninja Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Acroninja and to or from all applicable third parties.
GENERAL DISCLAIMER. ACRONINJA DOES NOT WARRANT THAT THE ACORNINJA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ACRONINJA SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE ACRONINJA SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY ACRONINJA TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ACRONINJA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, ACRONINJA EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE ACRONINJA SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
Medical Disclaimer. The Acroninja Services provided hereunder are not designed or intended to be a substitute for professional medical advice, diagnosis or treatment and should not be used as a replacement or substitute for professional medical advice, diagnosis, treatment or judgment. Customer acknowledges and agrees that medical treatment decisions will not be made by Acroninja nor through the usage of the Acroninja Services but remain based entirely upon health care providers’ professional medical judgement and in accordance with generally accepted standards of medical practice, including without limitation, verifying conclusions and outputs of the Acroninja Services, confirming the accuracy of life-threatening information and verifying critically important results.
Indemnity. Customer will defend, indemnify and hold harmless Acroninja, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) use of the Acroninja Services (or any part thereof) by Customer in combination with any third party software, application or service. Customer will fully cooperate with Acroninja in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Acroninja.
Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and 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:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF ACRONINJA IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE ACRONINJA SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF ACRONINJA IN CONNECTION WITH THIS AGREEMENT EXCEED TEN UNITED STATES DOLLARS ($10) OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL ACRONINJA’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ACRONINJA BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.