Last Revised: December 9, 2022
1. THE SERVICE.
1.1. Service description.
The WeStretch service allows users to generate and access tailored stretching exercises through the Website and/or WeStretch App (the “Service”). In order to access the Service and start creating or contributing with other users, you must be a registered user and you can use the Service from a computer or a personal mobile device if you have downloaded the WeStretch App.
1.2. Not to be used by minors.
The Services are not intended for persons under 13 years of age. Users of the Services must be 13 or older. We do not knowingly collect personal information from persons under 13. If you are under 13, do not use or provide any information on the Website or on or through any of its features/register on the Website, make any purchases through the Website or provide any information about yourself to us, including your name, address, telephone number, email address or any screen name or user name you may use. If we learn we have collected or received personal information from a child under 18 without verification of parental consent, we will delete that information.
1.3. Your Account
You may need to register for an WeStretch account in order to access or use certain Services. Your account may automatically provide you with access and means to use new Services that we create.
When you create an account for any of our Services, you must provide us with accurate and complete information as prompted by the account creation and registration process, and keep that information up to date. Otherwise, some of our Services may not operate correctly, and we may not be able to contact you with important notices.
If you create an account, you are responsible for maintaining the confidentiality of any and all actions that take place while using your account, and you must notify us away of any actual or suspected loss, theft, or unauthorized use of your account or account password. We are not responsible for any loss that results from unauthorized use of your username and password, with or without your knowledge.
1.4. Service Updates, Changes and Limitations
The Services change frequently, and their form and functionality may change without prior notice to you. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.
We may also from time to time, as we see fit, develop and provide updates for certain Services. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Certain portions of our Services may not properly operate if you do not install all Updates. These Updates may include updated versions of our applications, which may automatically electronically upgrade the versions used on your device, as well as updates to wearables and other connected products. You expressly consent to such automatic Updates. Further, you agree that the Terms (and any additional modifications of the same) will apply to any and all Updates to the Services. We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Service.
1.5. Service Monitoring and Suspension
We may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content. We may also deactivate, terminate or suspend your account at any time: (1) if we, in our sole discretion, determine that you are or have been in violation of these Terms or the spirit thereof (as highlighted in our Community Guidelines), (2) if we, in our sole discretion, determine that you have created risk or possible legal exposure for We Bananas Software, Inc. or any other User, (3) in response to requests by law enforcement or other government agencies, (4) upon discontinuance or material modification of any Services, or (5) due to unexpected technical issues or problems. We will endeavor to notify you by email or at the next time you attempt to access your account after any such deactivation, termination or suspension.
We care about the security of our users. While we work hard to protect the security of your Personal Data, User-Generated Content, and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any actual or suspected breach or unauthorized access or use of your account.
1.7. Consent to Receive Communications
After signing up for an account, you may receive periodic email communications regarding the operations of our Services. You cannot opt out of receiving these communications while you continue to use our Services.
You may also receive periodic promotions and other offers or materials that we believe might be of interest to you. You can opt out of receiving these promotional messages at any time by following the unsubscribe instructions contained in the message footer, or changing the email preferences in your account.
By finding and connecting with your friends and other users in our community, you may receive electronic communications, including messages from them (depending on your preferences, you may receive notification of these messages via email, in the website/application, and/or as a push notification). You can manage the messages you receive from other users in our Services by changing the preferences in your account.
2.1. Your Privacy
2.2. Spreading the Word
We hope you enjoy using our Services and encourage you to share your enthusiasm for them with your friends. If you elect to use the features in our Services to tell a friend about the Services, we will ask you to provide your friend’s email address or social media profile, which we may then use to contact your friend about the Services. We may store the information you provide for a period of time, but we will not post this information publicly. You represent that you are authorized to provide any third-party contact information that you provide to us for referrals.
3. OWNERSHIP AND USE OF CONTENT
For purposes of these Terms, (i) the term “Content” means any creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, text, ideas, communications, replies, “likes,” comments, information, data, software, scripts, executable files, graphics, maps, routes, geo-data, workouts and workout data, training plans, sleep activity, annotations, nutrition information, recipes, interactive features, designs, copyrights, trademarks, patents, sounds, applications and any intellectual property therein, any of which may be generated, provided, or otherwise made accessible on or through the Services; (ii) the term “User-Generated Content” means any Content that a user submits, transfers, or otherwise provides to or through the use of the Services. Content includes, without limitation, all User-Generated Content; and the term “We Bananas Software, Inc. Content” means all Content that is not User-Generated Content.
All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services and WeStretch Content belong to We Bananas Software, Inc. and/or its partners or applicable third parties. Each user retains ownership, responsibility for, and/or other applicable rights in the User-Generated Content that they create, and We Bananas Software, Inc. and/or its partners or third parties retain ownership, responsibility for and/or other applicable rights in all WeStretch Content. Except as expressly provided in the Terms, nothing in the Terms grants you a right or license to use any We Bananas Software, Inc. Content, including any content owned or controlled by any of our partners or other third parties. You agree that you will respect the intellectual property rights of others, and represent and warrant that you have all of the necessary rights to grant We Bananas Software, Inc. a license (described further in part 3.4 below) for all User-Generated Content you submit in connection with the Services.
3.3. Our License to You
You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), and the We Bananas Software, Inc. Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. We grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and We Bananas Software, Inc. Content for your own personal use and benefit, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the We Bananas Software, Inc. Content or Services to anyone else, or exploit the We Bananas Software, Inc. Content or Services for your own or any one else’s commercial benefit. This license is subject to the Terms, including our Community Guidelines and the following:
- We Bananas Software, Inc. Content. Except as expressly permitted by applicable law or authorized by We Bananas Software, Inc., you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, the Services’ software, or any We Bananas Software, Inc. Content offered as part of the Services (other than User-Generated Content), in whole or in part. Please do not download, copy, or save We Bananas Software, Inc. Content, except (i) as expressly permitted by the functionality of certain Services (e.g., printed maps) as provided for in the specific guidelines and/or additional terms applicable to those Services, or (ii) solely for personal use or your records.
- Confusion or Impersonation. Do not impersonate any person or entity, and/or falsely claim an affiliation with any person or entity.
- Disruptions, Exploits, or Resource Abuse. Do not interfere with or damage operation of the Services, including through unauthorized use, disruption, automated attacks, exploitation, or abuse of our resources.
- Automated Querying. Do not send automated queries of any sort to the systems and networks we use to provide the Services without our express written permission. “Sending automated queries” includes but is not limited to:
- using any software that sends automated queries to the systems and networks we use to provide the Services that seek bulk data, or determine how many saved routes or users we have for various queries;
- “meta-searching” the Services and the systems and networks we use to provide the Services; and
- performing “offline” searches relative to the Services.
- Unlawful Uses. You may only use the We Bananas Software, Inc. Content and Services for legally permitted purposes. You may not use the Services or any We Bananas Software, Inc. Content or other information displayed on or made available by the Services to stalk, harass, abuse, defame, threaten, or defraud others.3.4. Your License to Us
When you provide User-Generated Content to We Bananas Software, Inc. through the Services, you grant We Bananas Software, Inc. and our users a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), commercialize, create derivative works of, and otherwise exploit such User-Generated Content in connection with any and all Services. You acknowledge and agree that: (a) we have the right to arrange the posting of User-Generated Content in any way we desire; (b) We Bananas Software, Inc. has no obligation to provide you with any credit when using your User-Generated Content, but if We Bananas Software, Inc. chooses to provide you with credit, the size and placement of the credit is at our sole discretion; and (c) you are not entitled to any compensation or other payment from us in connection with the use of your User-Generated Content.The rights you grant in this license are for the limited purposes of allowing We Bananas Software, Inc. to operate the Services in accordance with their functionality, improve the Services, develop new Services, and to allow other community members to use the Services in accordance with their intended function.
We reserve the right to monitor, remove or modify User-Generated Content for any reason and at any time, including User-Generated Content that we believe violates these Terms, the Community Guidelines, and/or our policies.3.5. Content Retention
We make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Content available through the Services, and we make no commitment to update such Content.
User-Generated Content available in connection with the Services, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User-Generated Content originated. We do not endorse any opinions or recommendations contained in User-Generated Content. All information is provided “as is” without any representation, warranty or condition as to its accuracy or reliability.
4. COMMUNITY GUIDELINES
4.1. Interactive Areas
Some of our Services may include reviews, discussion forums, conversation pages, blogs or other interactive areas or social features that allow you and other users to post User-Generated Content and interact with one another (“Interactive Areas”). You are solely responsible for your use of the Interactive Areas and for any User-Generated Content that you post, including the transmission, accuracy and completeness of the User-Generated Content. As the Interactive Areas are often public, you understand that your User-Generated Content may be made and remain public.
You are solely responsible for your interactions with other users, whether online or in person, including but not limited to comments, challenges, and friendly competition. We assume no responsibility or liability for any loss or damage resulting from any interaction with other users who employ the Services, individuals you meet through the Services, or individuals who find you because of Content posted on, by or through the Services. You agree to take reasonable precautions in all interactions with any users or individuals you interact with in connection with the Services. You are solely responsible for your involvement with any users or individuals you interact with in connection with the Services. We Bananas Software, Inc. is under no obligation to become involved in any disputes between its users, but may do so at its own discretion.
4.2. Community Guidelines
Our Services are intended to be a safe and supportive community for all users. To help everyone feel safe and to maintain that positive environment, we require everyone to agree to, and follow, these rules (the “Community Guidelines”) when posting User-Generated Content and using the Services. By using the Services you agree that your User-Generated Content and use of the Interactive Areas will not violate the Community Guidelines. If you violate the Community Guidelines, we reserve the right to terminate your access to the Services.
• No Discriminatory or Abusive Content, or Personal Attacks or Insults.
o Stay positive – don’t spread hate messages, and don’t post Content that is threatening, hurtful, harassing, embarrassing, or annoying to other members of the community.
o No derogatory references to sex, gender, age, weight, body type, disability, ethnicity, religion, or sexual orientation, or endorsement of violence against any person or group, even if couched in humor, will be permitted. This includes expressing stereotypes about any group or community.
o You can respectfully disagree with a message, post or topic, but please do not attack other users by mocking or insulting them. If you are attacked by another user, and you reciprocate, you may also be subject to the same consequences.
• No Hijacking, Trolling, or Flame-baiting. If you are participating in our forums, please stay on-topic in an existing thread, and post new threads in the appropriate forum. Taking a thread off-topic is considered hijacking. Please either contribute politely and constructively to a topic, or move on without posting. This includes posts that encourage the drama in a topic to escalate, or posts intended to incite an uproar from the community.
• No Promotion of Unsafe Weight-Loss Techniques or Eating Disorders. One of our goals is to provide users with the tools to achieve their weight management goals at a steady, sustainable rate. Use of the Services to promote, glamorize, or achieve dangerously low levels of eating is not permitted. Accordingly, please do not contribute the following types of Content, which may be removed without warning:
o Content intended to promote potentially unsafe or controversial weight loss products or procedures, including non-medically prescribed supplements or MLM.
o Profiles, groups, messages, posts, or wall comments that encourage anorexia, bulimia, or very low calorie diets. This includes positive references to ana/mia, purging, or self-starving.
o Photos intended to glamorize extreme thinness.
• No Explicit Content. Don’t post Content that is defamatory, obscene, pornographic, offensive, hateful, inflammatory, or promoting sexually explicit material.
• No Harm to Minors. Don’t use the Services in a way that harms minors (or anyone, really).
• No Sending Spam and Junk Mail. Don’t spam people via posts, replies, or messages.
• No Illegal Content. Don’t advocate, promote, or assist any fraudulent or illegal act (e.g., violence, impersonation and computer misuse).
• No Soliciting Personal Data. Please don’t post or solicit Personal Data regarding or from any third party, including photographs, telephone numbers, street addresses, last names, email addresses and passwords in the Interactive Areas.
• No Public Posting of Private Conversations. Don’t publicly post an email or private message from any other user, moderator or administrator.
• No Breach of Legal Duty. Don’t post Content that is in breach of any contractual or other legal duty owed to a third party.
• No Deceptive or Fraudulent Links. Don’t post deceptive or fraudulent links. This includes giving links misleading descriptions, putting the wrong “source” field in a post, setting misleading click-through links on images, or embedding links to interstitial or pop-up ads.
• No Intellectual Property Infringement. Respect the intellectual property of others. If you aren’t allowed to use someone else’s proprietary work or likeness (either by license or by legal exceptions and limitations such as fair use), please don’t post it. In particular, if you have any reason to believe that User-Generated Content you see on our Services is infringing your copyrights or the copyrights of others, please see the Copyright/DMCA section of our Terms.
• No Impersonating We Bananas Software, Inc. or Others. Don’t post Content that is likely to deceive any person or be used to impersonate any person, or to misrepresent your identity or affiliation with any person, including with We Bananas Software, Inc. Creating an account for the purposes of deceiving other users or to work around a Services suspension is not permitted and will be grounds for a permanent ban from the Services.
• Other. Don’t post Content that contains anything that, in We Bananas Software, Inc.’s sole determination, is objectionable or inhibits any other person from using or enjoying the Services, or that may expose We Bananas Software, Inc. or our users to any harm or liability of any kind.
If we determine that you are violating the Community Guidelines or otherwise have breached the Terms, we may take actions to address the issue, including, but not limited to, terminating your right to use the Services, removing your User-Generated Content, taking legal action against you (in which case you agree that we may recover reasonable costs and attorneys’ fees) or disclosing information to law enforcement authorities. We reserve the right to enforce, or not enforce, these Community Guidelines in our sole discretion, and they don’t create a duty or contractual obligation for us to act in any particular manner.
4.3. Objectionable User-Generated Content
While we require all of our users to comply with the Community Guidelines and reserve the right to monitor for violations, we ultimately cannot guarantee they will comply with the Community Guidelines or these Terms. If you believe any Content submitted to our Services violates the Community Guidelines, or if you know or suspect that someone is misusing your User-Generated Content, please report it to us at firstname.lastname@example.org. By consenting to the Terms, you understand and acknowledge that when you access or otherwise use the Services:
• You may be exposed to User-Generated Content from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User-Generated Content.
• You may be exposed to User-Generated Content shared by other users that is offensive, indecent, or otherwise objectionable.
We cannot be held responsible for any injury or harm to you resulting from objectionable User-Generated Content or another user’s failure to comply with our Community Guidelines.
5. THIRD PARTY LINKS AND SERVICES
5.1. Third-Party Services and Logins
5.2. Third-Party Applications
You may be able to access certain third-party links, applications or content (“Third-Party Applications”) via accounts related to our Services. If you choose to access these Third-Party Applications, you may be requested to log-in and sync your accounts with such applications. You are in no way obligated to use any Third-Party Applications, and your access and use of such applications is entirely at your own risk. If you opt to use Third-Party Applications via your account with us, they may gain access to certain information that you have provided to us, including Personal Data, and they will use, store, and disclose such information in accordance with their individual privacy policies and terms and conditions. We have no liability or responsibility for the privacy and information security practices or other actions of any Third-Party Applications that you choose to access through your accounts with us. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third-Party Applications. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Applications.
5.3. Third-Party Content
Our Services may contain links to third-party websites, content, advertisers, services, promotions, special offers, or other events or activities (“Third-Party Content”) that are not owned or controlled by us. We do not endorse or assume any responsibility for Third-Party Content. If you access or pay for Third-Party Content, you do so at your own risk and you agree that we have no associated liability.
5.4. Third Party Products
Our Services may be accessed on third-party devices or other products (“Third Party Products”), and your ability to use certain features of the Services may require you to purchase Third-Party Products (e.g., fitness trackers). While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.
5.5. Third-Party Services, Activities, and Events
Our Services may include the ability to discover, access or participate in certain services, activities, or events (“Third-Party Activities”). Third-Party Activities are offered and provided by Third Parties, not We Bananas Software, Inc.. Your attendance at and participation in Third-Party Activities is solely at your own risk. We Bananas Software, Inc. will not be liable for any act, error or omission of any Third Party, including, without limitation, any which arises out of or is any way connected with a user’s attendance, use of or participation in any Third-Party Activities initially discovered, booked or registered for via the Services, or the performance or non-performance of any Third Party in connection with the Services. We Bananas Software, Inc. is not an agent of any provider of Third-Party Activities.
6. Mobile Services
6.1. Wireless Carrier and Device Considerations
To use or access our applications, you will need a compatible device. We also cannot guarantee that the applications will be compatible with, or available on, your device. We do not charge for use of some basic applications; however, you may need to pay some fees to use certain premium applications or features. Further, your phone company’s normal messaging, data, and other rates and fees will still apply.
6.2. Mobile Application License
We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use our applications downloaded directly from a legitimate marketplace, solely in object code format and solely for your personal use for lawful purposes. With respect to any open source or third-party code that may be incorporated in the applications, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
6.3. App Stores
If you download our applications from a third-party app store (the “App Provider”), you acknowledge and agree that:
• The Terms are an agreement between us, and not with the App Provider. As between We Bananas Software, Inc. and the App Provider, We Bananas Software, Inc. is solely responsible for the applications;
• The App Provider has no obligation to provide any maintenance and support services with respect to the applications;
• In the event of any failure of the applications to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider may refund the purchase price for the applications to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the applications, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be, as between We Bananas Software, Inc. and the App Provider, Apple App Store/Google Play’s responsibility;
• The App Provider is not responsible for addressing any claims you have relating to the applications or your possession and use of the applications;
• If a third party claims that an application infringes another party’s intellectual property rights, as between the App Provider and We Bananas Software, Inc.,We Bananas Software, Inc. will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms;
• The App Provider and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to the applications. Upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the applications against you as a third-party beneficiary thereof; and
• You must also comply with all applicable third-party terms of service when using the applications.
7. PAID SERVICES
7.1. Payment Terms
We offer certain premium versions of the Services (the “Premium Services”) for a fee. By signing up for and using any of the Premium Services, you agree to our Terms, and any additional terms and conditions that are provided here. You also agree to waive your statutory right of withdrawal to the maximum extent permitted by applicable law, so that you are able to immediately access all of the Premium Services.
The Premium Services provide you access to certain enhanced products, services, features and functionality (e.g., premium graphs and analysis, an ad-free browsing experience). By signing up for and using the Premium Services, including signing up for Free Trials of the Premium Services, you agree to pay any fees or other incurred charges that apply to the Premium Services (such as subscription fees).
When you sign up for the Premium Services, you must designate and provide information about your preferred payment method (“Payment Method”). This information must be complete and accurate, and you are responsible for keeping it up to date. You expressly authorize us to collect from your Payment Method the appropriate fees charged for the Premium Services and for any other purchases you elect to make via the Services.
You can choose to pay for the Premium Services on a monthly basis. All fees due for the Premium Services are payable in advance, and will be billed automatically to the Payment Method at the start of the monthly or annual Premium Service period, as applicable. Unless otherwise stated, Premium Services will auto-renew until you elect to cancel your access to Premium Services. All purchases of Premium Services are final and non-refundable, except at our sole discretion and in accordance with the rules governing each Premium Service.
7.2. Termination or Cancellation of Premium Services
If you do not pay the fees or charges due for your use of the Premium Services, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Premium Services (and may do so without notice).
You can cancel the Premium Services at any time either directly through the Service, through the Apple App Store (if you have purchased a license through that store) or through the Google Play store (if you have purchased a license through that store). Once you have cancelled your Premium Service and received confirmation, no other changes can be made to your account. The cancellation of a Premium Service will go into effect at the end of your current billing cycle, and you will have the same level of access to the Premium Service through the remainder of such billing cycle. For example, if you are billed on a monthly basis and cancel during a given month, you will be charged for the entirety of that month and maintain access to the Premium Service through the end of that month.
There are no refunds for termination or cancellation of your Premium Service. If you no longer wish to subscribe to a Premium Service, it is your responsibility to cancel your Premium Service in due time, regardless of whether or not you actively use the Premium Service.
7.3. Fee Changes
To the maximum extent permitted by applicable laws, we may change our prices for Premium Services at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Premium Service and/or by sending you an email notification. If you do not wish to pay the new prices, you can cancel the applicable Premium Service prior to the change going into effect.
7.4. Free Trials
We sometimes offer free trials of our Premium Services or other promotional offers (each a “Free Trial”). A Free Trial provides you access to the Premium Services for a period of time, with details specified when you sign up for the offer.
In order to sign up for a Free Trial, you may need to provide us with your preferred payment method. As soon as you submit your payment details, your Free Trial will begin. You will not be charged until the Free Trial period ends.
Unless you cancel before the end of the Free Trial, or unless otherwise stated, your access to the Premium Service will automatically continue and you will be billed the applicable fees for that Premium Service. All incurred charges are final and non-refundable, except at our sole discretion and in accordance with the rules governing each Premium Service. We may send you a reminder when your Free Trial is about to end, but we do not guarantee any such notifications. It is ultimately your responsibility to know when the Free Trial will end if you decide you do not want to become a paying Premium Services user after the Free Trial period.
If you decide that you do not want to become a paying Premium Services user, you must cancel your subscription before the end of the Free Trial period. Depending on which of our Premium Services for which you have a Free Trial, you may lose access to the Premium Service as soon as you cancel or at the end of the Free Trial period. Once you have cancelled your Free Trial and received confirmation, you cannot resume the Free Trial period even if you did not use the Premium Service for the entire duration of the offer.
Premium Service features and content may change at any time, and we cannot guarantee that any specific feature or content will be available for the entire Free Trial period. The rates in effect when you sign up for the Free Trial will be the same when the Free Trial ends, unless we notify you otherwise. We reserve the right, in our absolute discretion, to modify or terminate any Free Trial offer, your access to the Premium Services during the Free Trial, or any of these terms without notice and with no liability. You may not sign up for more than one Free Trial of a given Premium Service at the same time, and we reserve the right to limit your ability to take advantage of multiple Free Trials.
8. PHYSICAL ACTIVITIES
8.1. Safety First
We Bananas Software, Inc. cares about your safety. You should consult with your healthcare provider(s) and consider the associated risks before using our Services in connection with any physical activity, wellness or fitness program. By using our Services, you agree, represent and warrant that you have received consent from your physician to participate in wellness and fitness programs, workouts, exercises or any of the related activities made available to you in connection with the Services. Everyone’s condition and abilities are different, and participating in the activities promoted by our Services is at your own risk. If you choose to participate in these activities, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. Activities promoted by the Services may pose risks even to those who are currently in good health.
You understand and agree that we will not carry out and are not responsible for any physical inspection, supervision, preparation, execution or conduct of any activities related to or accessed or discovered via the Services (e.g., featured, official or community created challenges; routes; friendly competitions or similar activities; any single or group training activities; any Third-Party Activities or other events or activities that utilize our Services).
You expressly agree that your athletic activities carry certain inherent and significant risks of property damage, bodily injury, or death and that you voluntarily assume all known and unknown risks associated with these activities, even if caused in whole or part by the action, inaction, or negligence of We Bananas Software, Inc. or by the action, inaction, or negligence of others.
Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injuries or damages that are sustained from your physical activities or your use of, or inability to use, any Services or features of the Services, including any Content or activities that you access or learn about through our Services (e.g., a Third-Party Activity such as a yoga class), even if caused in whole or part by the action, inaction or negligence of We Bananas Software, Inc. or by the action, inaction or negligence of others. To the maximum extent permitted by applicable law, you also expressly agree that we do not assume responsibility for any Third-Party Activity or any other race, contest, class, athletic activity or event that utilizes or is promoted by or accessed via the Services.
8.2. Not Medical Advice
We aim to provide useful general information for our community, not professional medical advice. The Services are not medical devices, and the data provided by them is not intended to be utilized for medical purposes and is not intended to diagnose, treat, cure or prevent any disease, ailment or injury. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical advice via the Services. All Content provided through the Services, whether provided by us or by other users or third parties (even if they are claiming to be a doctor!) is not intended to be and should not be used in place of (a) the advice of your physician or other professionals, (b) a visit, call or consultation with your physician or other medical professionals, or (c) information contained on or in any product packaging or label. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Services. Should you have any health related questions, please call or see your physician or other healthcare provider promptly. If you have an emergency, call your physician or your local emergency services immediately.
Your use of the Services does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between We Bananas Software, Inc. and you.
9. NO WARRANTIES
EXCEPT WHERE PROHIBITED BY LAW, We Bananas Software, Inc. EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS BASIS. Without limiting the foregoing, you understand that, to the maximum extent permitted by applicable law, we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or any Content. To the maximum extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. Any oral or written advice provided by our agents or us does not and will not create any warranty. To the maximum extent permitted by applicable law, we also make no representations or warranties of any kind with respect to Content; User-Generated Content, in particular, is provided by and is solely the responsibility of the users providing that Content. No advice or information, whether oral or written, obtained from other users or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
10. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall We Bananas Software, Inc., its subsidiaries, partners or any wireless carriers be liable to you or any third party for (a) any indirect, incidental, special, reliance, exemplary, punitive, or consequential damages of any kind whatsoever; (b) loss of profits, revenue, data, use, goodwill, or other intangible losses; (c) damages relating to your access to, use of, or inability to access or use the Services; (d) damages relating to any conduct or content of any third party or user using the Services, including without limitation, defamatory, offensive or illegal conduct or content; and/or (e) damages in any manner relating to any Third-Party Content, Third-party Products or Third-Party Activities accessed via the Services. To the maximum extent permitted by applicable law, this limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not We Bananas Software, Inc. has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose. To the maximum extent permitted by applicable law, the total liability of We Bananas Software, Inc.], for any claim under these Terms, including for any implied warranties, is limited to the greater of one thousand dollars (us $1,000.00) or the amount you paid us to use the applicable Service(s) in the past twelve months.
In particular, to the extent permitted by applicable law, we are not liable for any claims arising out of (a) your use of the Services (including but not limited to your participation in any activities promoted by or accessed via the Services), (b) the use, disclosure, display, or maintenance of a user’s Personal Data and/or Location Data, (c) any other interactions with us or any other users using the Services, even if we have been advised of the possibility of such damages, or (d) other Content, information, services or goods received through or advertised on the Services or received through any links provided with the Services.
To the extent permitted by applicable law, you acknowledge and agree that we offer the Services and set the Services’ prices in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.
If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
To the maximum extent permitted by applicable law, you agree to indemnify and hold We Bananas Software, Inc., its subsidiaries, suppliers and other partners harmless from any claim or demand, including reasonable accounting and attorneys’ fees, made by any third party due to or arising out of (a) the User-Generated Content you access or share through the Services; (b) your use of the Services, (c) your athletic activities in connection with the Services (including, but not limited to, athletic activities in connection with any contests, races, group activities, Third-Party Activities or other events that we may sponsor, organize, participate in, or where the Services are employed), (d) your connection to the Services, (e) your violation of these Terms, (f) your use or misuse of any user’s Personal Data and Location Data, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another user in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
12. GOVERNING LAW, JURISDICTION AND VENUE
These Terms and any action related thereto will be governed by the laws of the province of Alberta, Canada, without regard to or application of its conflict of law provisions or your province or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in Alberta, Canada, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms or your use of the Services. The Terms and any Product-Specific Terms constitute the entire agreement between you and us with respect to your use of the Services.
Our failure to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms 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 parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You may not assign, delegate, or otherwise transfer your account or your obligations under these Terms without our prior written consent. We have the right, in our sole discretion, to transfer or assign all or any part of our rights under these Terms and will have the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.
Our notice to you via email, regular mail, or notices or links displayed in connection with the Services constitutes acceptable notice to you under the Terms. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Services, then it will be considered received twenty-four hours after it is first displayed.
14. CONTACT US
If you have any feedback, questions or comments about the Services, please contact us by email at email@example.com, by phone at (780) 833-3694, or by mail at: We Bananas Software, Inc, #104, 9824 97 Ave, Grande Prairie, AB Canada, T8V 7K2, and include the subject as “Attn: Legal – Terms and Conditions of Use”. Please be sure to include in any email or postal mail your full name, email address, postal address, and any message.