Terms and Conditions
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!
Acceptance of Agreement
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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
The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
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.
Please direct inquiries to SportFitz’s registered business address at:
80 225 Benjamin Rd