ASICS Studio Terms of Service
Effective Date: November 14, 2017
Last updated November 14, 2017
These Terms of Service are a legal agreement between you, or any business entity you represent, (“you” or “your”) and FitnessKeeper, Inc., 1 Winthrop Square, Boston, MA 02110 U.S.A.(“us” or “we” or “our” or “FitnessKeeper”), establishing terms and conditions under which you shall access and use the services and features (the “Services” or “ASICS Studio”) available on or through our website at www.studio.asics.com and its subdomains (the “Website”) and the ASICS Studio mobile application (the “App”).
BEFORE YOU CLICK ON THE “I ACCEPT” OR “I AGREE” OR SIMILAR BUTTON OR OTHERWISE INDICATE ACCEPTANCE OF THESE TERMS OF SERVICE OR ACCESS OR USE THIS WEBSITE, APP, OR THE SERVICES, CAREFULLY READ THESE TERMS OF SERVICE. BY CLICKING ON THE “I ACCEPT” OR “I AGREE” OR A SIMILAR BUTTON OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS OF SERVICE OR ACCESSING OR USING THIS WEBSITE, OR THE APP, YOU AND/OR THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT.
- Scope of Services.
ASICS Studio is a service to allow you to participate in, track the progress of, and manage preferences for fitness training or other classes taught or led by instructors and coaches through our App and Website (the “Classes”). ASICS Studio is solely for your personal use and is provided to you by FitnessKeeper, in connection with our partners, service providers, sponsors, and/or affiliates.
We may alter, suspend, discontinue or subcontract the Classes and other Services in whole or in part, at any time and for any reason, without notice. The Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use the Services, you must have a compatible mobile device enabled with the App. Your use of the Services is subject, in our sole discretion, to termination at any time.
- Subject to these Terms of Service and any other agreement between you and us, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable right to use the Services solely in the manner enabled by us and for your personal, non-commercial use. Your right to use the Services is automatically revoked if you breach these Terms of Service. From time to time, we may upgrade the Services or make improvements to the Services. You agree that these Terms of Service will apply to any such upgrades or improvements. The foregoing right is not a sale of any aspect of the Services or a sale of a copy of any aspect of the Services, and we and our partners and suppliers retain all right, title and interest in the Services. We reserve all rights not expressly granted under these Terms of Service.
- Login Credentials; Communications.
- Login Credentials. In order to enjoy the full benefits of the Service, you must register an account with us (an “Account”). You are responsible for the security of your log-in credentials and all activities that occur via your Account (including without limitation financial obligations). You agree to provide true and accurate information and to notify us in the event of any unauthorised access to your Account or any changes to your Account information. Limited access to certain features may be available to non-registered users but such access is still subject to these Terms of Service.
- Communications. Acknowledgement for You to Receive Communications. You hereby agree:
- to receive communications, including emails, text messages, push notifications, mail and telephone calls, that are related to the Services;
- that any communications from us may also include marketing materials from us or from third parties; and
- that any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements.
- You may opt out from receiving our marketing communications by emailing Support@asicsstudio.zendesk.com or selecting to unsubscribe as may be provided in the applicable correspondence.
- Fees and Payments.
You are expressly agreeing that our Payment Processor is authorised to charge you any applicable subscription fees or taxes and any other charges you may incur in connection with your use of the Services to the payment method you designate for app and in-app purchases in the Online Store (a “Payment Method”) during registration (or to a different Payment Method you designate via such Online Store when you update your payment method on such Online Store) for the applicable subscription period. You may change your Payment Method only by changing the payment method on file with the Payment Processor through the Online Store. If our Payment Processor is for any reason unable to effect automatic payment via your Payment Method, we will attempt to notify you via email and your subscription will be disabled until payment is received. You acknowledge and agree that we do not control our Payment Processor or its performance of payment processing services, and that we shall have no liability of any kind for any act or omission (including negligence) of our Payment Processor or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by you in relation to the performance or non-performance of payment processing services by our Payment Processor, other than to the extent to which any of the foregoing may arise from the gross negligence or willful misconduct of FitnessKeeper.
- Subscriptions. If you opt to sign up for a monthly or annual subscription plan, you will be subject to subscription fees in accordance with the Fee Schedule for that subscription plan (the “Fee Schedule”). You will be required to submit payment in advance to our Payment Processor via the online app store or marketplace from which you acquire or download our App (the “Online Store”) for access to our Services. Access to the Services will be disabled if payment is not received by our Payment Processor. Fees will be billed on an ongoing and recurring basis according to your subscription plan even if you are not actively using the Services. You authorise our Payment Processor to charge you any applicable subscription fees or taxes and any other charges you may incur in connection with your use of the Services to the Payment Method for your subscription. We do not collect or store your credit card information.
Your subscription and related payments to our Payment Processor will automatically renew at the end of the then-current subscription period, unless you cancel your subscription through the Online Store before the end of the current subscription period. Any cancellation will take effect the date after the last day of the current subscription period. If you cancel your Payment Method or your subscription before the end of the subscription period, we will not refund any amount previously paid to our Payment Processor. If we suspend or terminate any subscription, then you will forfeit the suspended or terminated subscription, except as may be set forth herein. Subscriptions have no monetary value (i.e. are not a cash account or equivalent) and represent only a limited right to use the Services subject to these Terms of Service. Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your usage subscription or the Services or Content. We may modify, suspend or terminate subscriptions and any limited rights granted by such subscription in our sole discretion, and without advance notice or liability.
We do not recognise the transfer of subscriptions. Accordingly, you may not purchase, sell, barter, or trade any subscription or offer to purchase, sell or trade a subscription. Any such attempted transfer will be null and void.
- Subscription Fees. The Fee Schedule for subscriptions to the Services are in the description of the App on the Online Store. The Fee Schedule, including any discounts, is subject to change at any time in our sole discretion. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule. You are responsible for reviewing the Fee Schedule from time to time. If you do not agree with the price changes or other changes to these Terms of Service, you have the right to unsubscribe from the Services or terminate your subscription prior to the price change going into effect.
- Payments Non-Refundable. PAYMENTS ARE NON-REFUNDABLE AND THERE IS NO RIGHT TO REFUNDS OR CREDITS UNLESS REQUIRED BY APPLICABLE LAW. We may (in our sole discretion) ask our Payment Processor to provide a refund, discount, or other consideration to some or all of our users (“Credits”). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us or our Payment Processor to provide credits in the future, under any circumstance.
- User Content.
The Services may now or in the future include the submission of content by users of the Services (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You shall be solely responsible for User Content you submit and the consequences of our posting or publishing such User Content.
- User Content Licence. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable and transferable licence to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the User Content in connection with our provision of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Services a non-exclusive licence to access your User Content through the Services, if you have permitted such access through your account settings, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Services and under these Terms of Service. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
- Prohibited Content. In connection with User Content, you further agree that you will not:
- submit material that is protected by copyright, trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights that you do not own or have permission from their rightful owner to post the material and to grant us all of the licence rights granted herein;
- publish falsehoods or misrepresentations that could damage us or any third party;
- submit material that is unlawful, obscene, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offence, give rise to civil liability, breach any law, or is otherwise inappropriate;
- post advertisements or solicitations of business; or
- impersonate another person.
- Removal. We will remove any User Content if properly notified that such User Content infringes on another’s intellectual property rights. We also reserve all rights to remove any User Content we deem inappropriate or in violation of these Terms of Service, in our sole discretion. We may also terminate your access to the Services, if we determine you are a “Repeat Violator.” Repeat Violators are anyone who has been notified of infringing or inappropriate activity more than once and/or has had any User Content removed from the Services more than twice. We may remove any User Content without notice.
- Permissions. In connection with any User Content you submit, you affirm, represent, and/or warrant that (i) you own or have the necessary licences, rights, consents, and permissions to such User Content and to permit your use of the Services and our performance of the Services; and (ii) you have the express consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person in respect of and to enable you to use the Services and for us to perform the Services.
- No Confidentiality. You understand that whether or not any User Content provided by you is published by the Services, we cannot guarantee any confidentiality with respect to such User Content.
- No Liability; No Endorsement. The User Content is provided solely as a convenience for you and not as an endorsement of by of such content. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content.
- Prohibited Conduct.
The Services are for personal use only and may not be used for any commercial purposes, except those that are specifically approved by us. Activities that are expressly prohibited include:
- collecting usernames and/or other user information of other users by electronic or other means for the purpose of sending unsolicited email or other communications;
- any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof;
- use of web scraping, web harvesting, or web data extraction methods from our Website or Services even if the ASICS Studio account owner gives permission; and
- any use of the Services which is unlawful or in violation of these Terms of Service.
We reserve the right to consider other conduct to be prohibited; the restrictions above are intended to be illustrative.
- Intellectual Property Rights.
- Rights to Content. The Services allow for the delivery of software, text, graphics, images, video, audio, data and other material (collectively referred to as the “Content”). The Content and User Content may be owned by us or our users, partners, sponsors, or affiliates and is protected by copyright under both Irish and foreign laws. You have no rights in or to the Content (other than the User Content you provide through the Services), and you may not use the Content (other than such User Content) except as permitted under these Terms of Service. You may not sell, transfer, assign, licence, sublicence, or modify the Content (which for the avoidance of doubt shall include Third-Party Trade Marks as defined below) or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose, except (i) as permitted under these Terms of Service to utilise features of the Services or (ii) with the prior written consent of us or the third-party owner. If you breach any part of these Terms of Service, your permission to access and/or use the Content and Services automatically terminates and you must immediately destroy any copies you have made of the Content.
- Report Infringement. If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyright, you may submit a notification in writing to our Copyright Agent setting out full details of your concerns at the address below:
For clarity, only notices submitted in accordance with this sub-clause and notices relating to complaints in connection with User Content or violations of these Terms of Service should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to our standard support contacts as identified on the Services.
You agree to defend, indemnify, and hold us harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Service or your uploading of, access to, or use or misuse of your User Content, the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defence of such matter.
- Third Party Sites; Trade Marks.
- External Services. The Services include access to links to, and content and data from, third-party websites (“External Services”). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Services.
- Third-Party Trade Marks. Various company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the “Third-Party Trade Marks”). The Third-Party Trade Marks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trade Marks.
- Disclaimer; No Medical Advice.
- Disclaimer. THE SERVICES AND ALL CONTENT ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WE DO NOT WARRANT THAT: (i) THE INFORMATION OR CONTENT AVAILABLE THROUGH THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES PROVIDED BY THE SERVICES WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED OR (iv) THAT OUR SERVERS OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
You are aware that there are risks associated with participating in Classes including but not limited to property damage, illness and bodily injury. You specifically assume the risk of injury or harm associated with your participation in the Classes and use of the Services. We are not responsible for any health problems or injuries, including without limitation incapacity or death which may occur as a result of the Classes or the Services.
- No Medical Advice. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR MEDICAL OPINION. We are not licensed medical professionals and we are not in the business of providing medical advice. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise program. YOUR USE OF THE APP OR ANY OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND FITNESSKEEPER.
- Limitations of Liability.
- Disclaimer. EXCEPT TO THE EXTENT TO WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED AT LAW, WE SHALL NOT BE LIABLE TO YOU, ANY OTHER USER OF OUR SERVICES, THIRD PARTY PROVIDERS OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORISED ACCESS TO OR USE OR MISUSE OF THE SERVICES, YOUR CONTACT INFORMATION, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- Limitation. OUR AGGREGATE LIABILITY FOR ALL CLAIMS CUMULATIVELY ARISING FROM THESE TERMS OF SERVICE SHALL NOT EXCEED ONE HUNDRED POUNDS STERLING (€100.00).
- Exclusions. NOTHING IN THESE TERMS OF SERVICE SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
- DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS;
- FRAUD OR FRAUDULENT MISREPRESENTATION; OR
- ANY MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR US TO EXCLUDE OR RESTRICT LIABILITY.
- Release from Liability.
You release, to the fullest extent permitted by law, FitnessKeeper, Inc., its directors, officers, members, employees, representatives, consultants, agents, suppliers and/or distributors from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with (i) disputes between or among users; (ii) third party sites, products and services, including without limitation insurance policies; and (iii) claims relating to the unauthorised access to any data communications or content stored under or relating to your account, including unauthorised use or alteration of such communications or your content.
- Modifying and Terminating Service.
You may terminate these Terms of Service at any time by canceling your subscription through your accounts settings page. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THESE TERMS OF SERVICE. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE THE SERVICES AND THIS AGREEMENT NOR FOR ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR SUBSCRIPTION AND THIS AGREEMENT.
We may terminate these Terms of Service, disable your account, and/or put your account on inactive status, in each case at any time with reasonable cause or violation to these Terms of Service, and with or without notice. We shall have no liability to you or any third party because of such termination or action.
- Unsolicited Ideas and Feedback.
As part of using the Service, we may provide you with the opportunity to provide feedback, comments, or suggestions regarding use of the Service. You agree that in the absence of a separate written agreement to the contrary, FitnessKeeper, Inc. and its affiliates will be free to use, exploit and disclose any feedback you provide for any purpose whatsoever, without any duty to account or pay royalties to you.
We may provide notice to you via the App or the email address you provide to FitnessKeeper, Inc. during the registration process. Notice shall be deemed given 24 hours after any electronic notice is sent. Alternatively, we may give you legal notice by post to the address provided during the registration or purchase process and you may give us notice to the address set forth on our Website as our address. In such case, notice shall be deemed given three days after the date of posting.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
- Governing Law; Dispute Resolution.
The following is a link to the European Commission’s Online Dispute Resolution platform which is dedicated to helping consumers and traders resolve their disputes out-of-court: http://ec.europa.eu/odr. We encourage you to exhaust the ODR prior to sending us a notification of a dispute or claim you allege against us.
In the event that the ODR does not resolve a dispute or claim, these Terms of Service, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of Ireland. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. If any provision of these Terms of Service is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the remaining provisions of the Terms of Service, which shall remain in full force and effect.
- Online Dispute Resolution; Agreement to Arbitrate
The following is a link to the European Commission’s Online Dispute Resolution (“ODR”) platform which is dedicated to helping consumers and traders resolve their disputes out-of-court: http://ec.europa.eu/odr. We encourage you to exhaust the ODR prior to sending us a notification of a dispute or claim you allege against us.
In accordance with Section 19(c), this Agreement to Arbitrate will survive the termination of your relationship with us.
- No Waiver. Failure by us to act on or enforce any provision of the Terms of Service shall not be construed as a waiver of that provision or any other provision in these Terms of Service. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
- Entire Agreement. Except as expressly agreed by us and you, these Terms of Service constitute the entire agreement between you and us with respect to the subject matter, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.
- Survival. All sections of these Terms of Service that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled User Content, Indemnification, Disclaimer; No Medical Advice, Limitations of Liability, Agreement to Arbitrate; and Miscellaneous.
- Headings. The section headings are provided merely for convenience and shall not be given any legal import.
- Successors; Assigns. These Terms of Service will inure to the benefit of our successors, assigns, licencees, and sublicencees.
- No Minors.
Individuals under 13 years of age are not permitted to use the Services. Your account may be terminated without warning, if we believe that you are under 13 years of age.
- Additional Information.
If you have any questions about these Terms of Service, please contact us at: Support@asicsstudio.zendesk.com.
Copyright © 2017, FitnessKeeper, Inc., All Rights Reserved.