Terms and Conditions

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SPORTFITZ Website and APPLICATION.

This document affects your rights, and most importantly it limits your ability to sue us if things go wrong, so please read it carefully.

While our hope is to provide you with notice of events that may create a health risk, we aren’t perfect, (nobody is) and neither is our hardware or software.  It is possible that our hardware and/or software may fail to detect an event.  We are not liable to you if this happens, even if the failure to detect the event made the difference between safety and injury, or even life and death.  Don’t rely on the absence of a notification as meaning you are OK, if you feel something isn’t right, or even if you aren’t sure, call an ambulance!

Your use of the Application (as defined herein) is expressly conditioned on your acceptance without modification of the following terms of use (the “Terms of Use”). If you (“You” or “User”) accept these Terms of Use, click on the “I Accept” button below. That action is the equivalent of your signature and indicates your acceptance of these Terms of Use and that you intend to be legally bound by them.

Acceptance of Agreement

This is an agreement between you and SportFitzInc (“SportFitz”, “We” or “Us”), regarding your access to and use of the mobile application “SportFitz”, the website (www.sportFitz.com) and any content posted and/or linked to thereon (collectively, the “Application”) and the Device (as hereinafter defined). These Terms of Use also provide benefits to SportFitz’s current and future affiliates, service providers and suppliers (each an “Additional Party”). The provisions of this Terms of Use are intended to be for the benefit of, and shall be enforceable by, each Additional Party, which shall be deemed third party beneficiaries under these Terms of Use, and shall be in addition to, and shall not impair, any other rights an Additional Party may have under applicable laws (the word “law” as used herein includes regulations and other subsidiary legislation).

SportFitz may, in its sole and arbitrary discretion, change these Terms of Use from time to time as it relates to future use of the Application, by posting revised Terms of Use on the Application. By using the Application after these revised Terms of Use have been posted, you signify your acceptance and agreement to be bound by the revised Terms of Use. You may not change the Terms of Use in any manner.

SportFitz Service

The Application is the companion platform to the physical wearable device manufactured and sold by SportFitz or its authorized resellers or agents commonly known or marketed as a Fitz (the “Device”). Among other things, the Application collects, in cooperation with the Device, via wireless connection, and analyzes data received from the Device relating to your physiological state, which data may include one or more of acceleration, heart rate, head movement, head orientation, geographic location, physical location, body orientation, blood oxygen, blood pressure, and other information pertinent to your vital signs and performance while you wear the Device (the “SportFitz Service”).

Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the SportFitz Service unless their parent has consented in accordance with applicable law.

Full use of the SportFitz Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of such equipment may influence the performance of the SportFitz Service and it is your responsibility to ensure the functionality and security of the equipment.

You may only connect to the SportFitz Service using (i) the Device; or (ii) the Application (or approved third-party applications, software, or devices) (the “Authorized Connections”). You may not connect to the SportFitz Service with (i) any device that is not manufactured, distributed, or sold by SportFitz itself or through its authorized resellers or agents (such as a “knock-off” or counterfeit version of the Device); (ii) any device that otherwise intends to resemble or purports to be the Device; or (iii) any unauthorized application or third-party connection, provided that nothing in the foregoing shall prohibit the User from accessing the Application or the SportFitz Service through a mobile device manufactured by a third party. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the SportFitz Service.

The Service is provided free of charge to the Device user, but service fees (the “Service Fees”) may be charged to those individuals that wish to have access to the information and data collected by the Application and to which you have granted access to such information and data. The Service Fees are set out more particularly in the Application and may be altered from time to time in the sole discretion of SportFitz. Service Fees are processed through the PayPal online payment system (“PayPal”). PayPal is the exclusive holder of all credit card information obtained from user of the Application. SportFitz does not hold, store or otherwise retain any credit card information and accepts no liability relating to or responsibility for any credit card information.

Use of Application

SportFitz grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (i) access and use the SportFitz Service, (ii) access and view the Application, its design, all text, graphics, content, video, audio and the selection and arrangement of the Application and its content owned by SportFitz (the
SportFitz Content”), and (iii) use the software and firmware that is embedded into the Device as authorized in these Terms of Use. This license is provided solely for your personal, non-commercial use and enjoyment of the SportFitz Service as permitted in these Terms of Use.

Users may only use the Application and its content in the manner outlined in the Application and/or in these Terms of Use, as applicable, and in no other manner. Neither the Application nor its content may be, in whole or in part, copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of SportFitz. Unauthorized use of the Application and/or the content contained on the Application may violate applicable copyright, trademark or other intellectual property laws or other laws.

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the SportFitz Service or the Device, as applicable: (1) use, display, mirror, or frame the SportFitz Service or any individual element within the SportFitz Service, including the layout and design of any page, without SportFitz’s express written consent; (2) use SportFitz’s name, any SportFitz trademark or logo, or any SportFitz proprietary information without SportFitz’s express written consent; (3) access or tamper with non-public areas of the SportFitz Service, SportFitz’s computer systems, or the technical delivery systems of SportFitz’s providers; (4) test the vulnerability of any SportFitz system or breach any security or authentication measures; (5) circumvent any technological measure implemented by SportFitz or any of SportFitz’s providers or any other third party (including another user) to protect the SportFitz Service or the Device; (6) access the SportFitz Service or SportFitz Content through the use of any mechanism other than through the use of an Authorized Connection; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that SportFitz provides to you or any other part of the SportFitz Service.

Ownership, Trademarks, Copyright and Patents

The SportFitz Content and any other aspects of the Application or its content (including its design, all text, graphics, content, video, audio and the selection and arrangement of the Application and its content) are the property of SportFitz and/or its subsidiaries, affiliates, third party providers and distributors (“Third Parties”), and are protected under the copyright laws of Canada and other countries. None of the content found on the Application may be reproduced, republished, distributed, displayed, sold, transferred, or modified without the express written permission of SportFitz or the applicable Third Parties. All software used on this site is the property of SportFitz or its software suppliers and protected by Canadian and international copyright laws.  Except as expressly provided herein, no right or license is granted in respect of any patent owned by SportFitz.

The name ‘SportFitz’ and all other related trademarks and design marks displayed on the Application are trademarks of SportFitz. Other trademarks and design marks appearing on the Application are trademarks of their respective owners. Nothing contained on the Application should be construed as granting, by implication or otherwise, any license or right to use or disparage any trademarks.

User Content

If, now or in the future, you are able to contribute, post or transmit any content to, by or through the Application, including without limitation text, audio, video and image, in connection with your use of the Application (“Content”),  you are prohibited from contributing, posting or transmitting to, by or through the Application any Content (i) which is infringing, unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane, (ii) that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability, or otherwise violate any law, or (iii) consisting of or containing software viruses, malicious exploits or other malicious code, political campaigning or opinion, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false, misleading, unmonitored, infrequently monitored, or otherwise malfeasant e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any Content. SportFitz reserves the right (but does not have any obligation) to remove or edit Content including, but not limited to, any Content included in your profile for use on the Application, and to edit the Content generally, regardless of reputational impact.

By submitting Content in any form, you automatically grant to SportFitz, and you represent and warrant that you have the right to grant, a worldwide, exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to do with the Content anything that you could do, including, without restricting the generality of the foregoing, use, delete, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, display and commercialize any such Content throughout the world in any media, now known or later developed, in any way and for any purpose whatsoever, commercial or otherwise, without providing compensation to you or any other person, without any liability whatsoever, whether in tort, contract or any other theory of law, equity or civil law, and free from any obligation of confidence, and you waive any and all moral rights in the Content. Any use of Content will be in accordance with SportFitz’s Privacy Policy.

Username and Password

Your account on the Application may be accessed only by use of your login name and password. You will choose your own username and password upon registration for the Application. You are solely responsible and liable for any use and/or misuse of your login name and password and for all activities that occur under your login name and password. For security reasons, you must keep your login name and password confidential and not disclose them to any person or permit any other person to use them, except an authorized representative of SportFitz. If you lose a Device or if it is stolen, you must report that to SportFitz and you acknowledge and agree that you are solely liable for any loss or damage that results from such Device being lost or stolen.

All login names and passwords remain the property of SportFitz, and may be cancelled or suspended at any time by SportFitz without any notice or liability, whether in tort, contract or any other theory of law, equity or civil law, to you or any other person. SportFitz is not under any obligation to verify the actual identity or authority of the user of any login name or password.

You must immediately notify SportFitz of any unauthorized use of your login name or password, or if you know or suspect that your login name or password has been lost or stolen, has become known to any other person, or has been otherwise compromised.

Privacy

You have read SportFitz’s Privacy Policy, the terms of which appear on the Application and are incorporated into these Terms of Use, and you agree that the terms of that policy are reasonable. You consent to the collection, use and disclosure of your personal information by SportFitz in accordance with the terms of and for the purposes set out in SportFitz’s Privacy Policy.

Your use of the Application may be mandated or facilitated by a sports team, educational institution or other organization to which you may be a member, participant or otherwise (an “Organization”). The Organization may require that certain information pertaining to or resulting from your use of the Application be shared with the Organization and, in such cases, by using the Application, you are deemed to consent to such disclosure to the Organization. You may withdraw your consent to such disclosure at any time by contacting us using the information under the “Inquiries” heading below, but such withdrawal may disqualify you from participation in the Organization based on its rules, and we have no any liability whatsoever, whether in tort, contract or any other theory of law, equity or civil law in respect of such disqualification.

Liability disclaimer – READ THE FOLLOWING CAREFULLY

Notwithstanding anything else in these Terms of Use, SportFitz makes no representations or warranties of any kind, express or implied, and to the extent permitted by law, expressly disclaims and excludes all statutory warranties, regarding the Application, the Device, SportFitz Content and/or any other content or services provided on the Application and/or the Device, all of which are provided on an “as is” and “as available” basis. If you rely on any SportFitz Content or the Application or the Device, you do so at your own risk. SportFitz does not warrant the accuracy, completeness, currency, reliability or suitability of the operation of the Application, the Device or any of the content or data found on the Application and/or the Device, including the SportFitz Content, and expressly disclaims all warranties and conditions in respect of the Application and the Device, its content, information or data, and any services offered on the Application or through the Device, including those arising by statute or otherwise in law, including, without restricting the generality of the foregoing, any warranties of merchantable quality, fitness for purpose or non-infringement.

SportFitz is not responsible for late, lost, incomplete, illegible, misdirected, misrepresented or stolen messages, mail or other data of any kind or nature whatsoever, unavailable network connections, failed, incomplete, garbled or delayed computer transmissions, on-line failures, hardware, software or other technical malfunctions or disturbances or any other communications failures or circumstances affecting, disrupting or corrupting communications.

SportFitz assumes no responsibility, and will not be liable, whether in tort, contract or any other theory of law, equity or civil law, for  (i) any damages to, or any viruses affecting your computer equipment (including a mobile device) or other property on account of your access to or use of the Application or your downloading of any materials, text, images, video, audio or other data from the Application, regardless of whether or not SportFitz knew or should have foreseen or known of same, or (ii) the Risks (as defined below) or any and all loss, damage, expense (medical or otherwise) or injury, including death or permanent disability, that you may suffer, or that your heirs or next of kin may suffer, as a result of the Risks or your use of the Application or the Device or any exercise or activity you attempt in connection with your use of the Application.

Release

You hereby irrevocably release, waive and discharge SportFitz, its partners, officers, directors, employees, agents and representatives (collectively, “Representatives”) and each Additional Party (collectively, the “Releasees”) from all claims of any kind which you, or your heirs, executors, administrators, legal representatives, successors and assigns, as applicable, ever had, now have, or may in the future have against SportFitz, or the Releasees, by reason of any cause, whether known or unknown, arising from, connected with, or in any way related to the Application, the Device, the SportFitz Content or any related matter.

Indemnification

You will indemnify and save harmless SportFitz and the Releasees from and against all claims and demands, losses, damages, costs, expenses, actions and other proceedings by whomever made, sustained, brought, prosecuted, threatened to be brought or prosecuted in any manner, based upon, occasioned by, attributable to, or arising from your use of the Application, the Device or your reliance on the SportFitz Content.

Third Party Beneficiaries

To ensure that the indemnities and releases provided by you to SportFitz and the Releasees are enforceable, you hereby agree that SportFitz is acting as agent for the Releasees with respect to the indemnities and releases intended to be given to the Releasees under the headings “Release” and “Indemnification”, above, respectively. SportFitz agrees that it will hold any right to indemnification and/or release that any Releasee is intended to have under the headings “Release” and “Indemnification”, above, respectively, in trust for that Releasee, and that funds received by SportFitz in respect of any claims by any Releasee of it will be held in trust for that Releasee.

Maximum Liability

If SportFitz should be found liable for any loss or damage which arises out of or is in any way connected with any claim, the maximum liability of SportFitz will in no event exceed the aggregate CAD$100.

Notwithstanding anything else contained in these Terms of Use, in no event will SportFitz be liable for any special, exemplary, punitive, direct, indirect, incidental or consequential damages of any kind (including, but not limited to economic loss, lost profits or lost savings), whether based in contract, tort, strict liability, equity, civil law, statutory liability or otherwise, which arise out of or are in any way connected with the Application, the Device, the SportFitz Service, the SportFitz Content, your use thereof or your reliance thereon, as applicable, the operation of the Application or any failure or delay in the operation of the Application even if advised of the possibility of such damages and regardless of whether such damages may be classified or ultimately determined to be direct or indirect damages.

Acknowledgement of Risks

You acknowledge and understand that (i) in connection with your use of the Application and/or the Device, you may be engaging in activities (including but not limited to athletic activities) that involve the risk of serious bodily injury, including permanent disability and death and the severe social and economic losses that may result therefrom which might result not only from your own actions, inactions or negligence, but the actions, inactions or negligence of others, environmental conditions, or the use of equipment, (ii) you may suffer serious bodily injury, including permanent disability and death, if the Application, the Device and/or the SportFitz Service is defective, inaccurate or otherwise fails to work as intended or expected, and (iii) the Device may emit electromagnetic radiation which may have effects on your health that are difficult or impossible to predict, including serious permanent injury and death (collectively, the “Risks”).

Not Medical Advice

The SportFitz Service is not intended to diagnose, treat, cure, or prevent any disease or injury. Additionally, the SportFitz Content or any notification you receive by or through the Application or in connection with your use of the Device should not be construed in any circumstance as constituting medical advice or relied upon in lieu or medical advice or treatment. Similarly, if you do not receive a notification by or through the Application or in connection with your use of the Device alerting you to a possible medical emergency, this should not be construed in any circumstance as constituting medical advice, relied upon in lieu or medical advice or treatment or as a confirmation that you do not need medical attention. In all circumstances, if you if you feel something may not be right or you may be experiencing a medical emergency, even if you are not sure, call an ambulance or otherwise seek medical advise or treatment immediately.

If you rely on the Application and/or the Device or any notification you receive from or through the Application or in connection with your use of the Device for any reason, medical or otherwise, you do so entirely at your own risk.

Prior to using the Application or the Device, always ensure the Application and Device are working properly.

Consult your doctor before engaging in any athletic activity or exercise program. If you experience a medical emergency, cease that physical activity stop using the SportFitz Service and consult with a medical professional. Prolonged contact with wearable devices such as the Device may contribute to skin irritation or allergies in some Users. If you notice any skin irritation or soreness on your neck or head after wearing the Device, remove your Device, discontinue use and consult your doctor.

Feedback

SportFitz welcomes your feedback and comments regarding the Application. By submitting or providing us with comments, messages, suggestions, ideas, concepts, feedback or other information about the Application, SportFitz and/or its operations other than Content, which is dealt with above (the “Submissions”), you hereby: (i) represent and warrant that none of the Submissions are confidential or proprietary to you or to any other party; (ii) represent and warrant that none of the Submissions breach any agreement to which you are a party; and (iii) grant SportFitz an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to do with the Submissions anything that you could do, including, without restricting generality of the foregoing, use, delete, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, display and commercialize the Submissions in any way and for any purpose whatsoever. You also waive in favour of SportFitz and its successors and assigns any and all of your moral rights in and to all Submissions. Furthermore, you agree that SportFitz is not responsible for the confidentiality of any Submissions.

Governing Laws, Jurisdiction

You consent and submit to the exclusive jurisdiction of the Courts of Ontario (including the Federal Court of Canada to the extent the same has jurisdiction) located in or closest to the City of Waterloo, in the Province of Ontario, for all disputes arising out of or relating to the use of the Application and these Terms of Use. These Terms of Use and their performance will be governed by the laws of the Province of Ontario including the federal laws of Canada applicable in that Province.

The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.

Electronic Communications

When you visit the Application or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Application. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Changes to the SportFitz Service

SportFitz may change, disable or discontinue, temporarily or permanently, any feature, component, or content of the SportFitz Service at any time without notice. SportFitz is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the SportFitz Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by the Device or other SportFitz products without prior notice to you.

Termination

In its sole and arbitrary discretion, in addition to any other rights or remedies available to SportFitz under these Terms of Use or otherwise available to SportFitz at law, and without any liability whatsoever whether in tort, contract, or any other theory of law or equity, SportFitz reserves the right to, at any time and without notice, cause or justification, terminate, suspend or restrict your access to all or any component of the Application and/or the SportFitz Service. Upon any such suspension, restriction, or termination, we may delete or remove your Content and other information related to your account.

Upon any termination of these Terms of Use or suspension, termination, or discontinuation of the SportFitz Service or your account, the provisions above under the headings “Use of Application”, “Ownership, Trademarks and Copyright”, “User Content”, “Liability Disclaimer”, “Maximum Liability”, “Release”, “Indemnification”, “Acknowledgement of Risks” and “Third Party Beneficiaries” will survive.

Additional Terms

Additional terms may apply to certain products or services offered by SportFitz. In the event that there is a conflict between these Terms of Use and any additional terms, the additional terms will govern.

Severability

These Terms of Use will be severable. In the event that any provision is determined to be unenforceable or invalid, that provision will nonetheless be enforced to the fullest extent permitted by applicable law, and that determination will not affect the validity and enforceable of any other remaining provisions of these Terms of Use.

Headings

The headings used in these Terms of Use are included for convenience only and will not limit or otherwise affect these Terms of Use.

Waiver

SportFitz’s failure or delay to enforce any of the Terms of Use shall not operate as a waiver of any of its rights and privileges contained herein.

Entire Agreement

These Terms of Use, together with those incorporated or referred to in these Terms of Use, including for greater certainty the Privacy Policy, constitute the entire agreement between us pertaining to the subject matter of these Terms of Use, and supersede any prior agreements, understandings, negotiations and discussions, whether electronic, oral or written, regarding the subject matter of these Terms of Use, and may not be amended or modified except by SportFitz as set out above. There are no representations, warranties or other agreements between us express or implied, in connection with the subject matter of these Terms of Use, except as specifically set out in these Terms of Use or in those incorporated or referred to in these Terms of Use. No party has been induced to enter into these Term of Use in reliance on, and there will be no liability assessed, either in tort or contract, with respect to, any warranty, representation, opinion, advice or assertion of fact, except to the extent it has been reduced to writing and included in these Terms of Use or in those incorporated or referred to in these Terms of Use.

Inquiries

Please direct inquiries to SportFitz’s registered business address at:

80 225 Benjamin Rd

Waterloo
Ontario

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