Terms of Use

TERMS OF SERVICE FOR EVOLVE FUNCTIONAL FITNESS INC.  WEBSITE AND APPLICATION

Last updated: December 6, 2013

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE.  BY REGISTERING FOR, ACCESSING, BROWSING, POSTING, DOWNLOADING FROM OR USING THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE EVOLVE PRIVACY POLICY AND ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).  IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE PLATFORM, WEBSITE AND/OR APPLICATION IN THE MANNER DESCRIBED IN SECTION 12.2 BELOW.

Welcome to Evolve Functional Fitness Inc. (“Evolve”) a functional fitness mobile application, which is accessible through a variety of platforms, including http://www.evolvefunctionalfitness.com (the “Website”) and through our mobile application, which is accessible through tablets, cell phones, personal digital assistants, connected television and other devices (the “App”). The Website and the App are collectively referred to as the “Evolve Platform”.

The following Terms of Use for the Evolve Platform is a legal contract between you, your parent or legal guardian, if applicable (“You”, “Your”, “User” or “Users”), and Evolve regarding Your use of the Evolve Platform.

1        Eligibility.

To use the Evolve Platform You must be at least 13 years of age.  If You are under 13 years of age, You may not, under any circumstances or for any reason, use the Evolve Platform.  By using the Evolve Platform, You represent and warrant that You meet the eligibility requirements in this Section.

If You are under 18 years of age, You may not use the Evolve Platform without obtaining the consent of Your parent or guardian.  If You have not obtained the consent of Your parent or guardian, then You represent and warrant that You are at least 18.

Notice to parents and guardians. You are responsible for monitoring and supervising your child’s use of the Evolve Platform.  If Your child is under 13, Your child may not use the Evolve Platform and You may not consent to such use. If Your child is between the ages of 13 and 18, and is using the Evolve Platform, but You have not consented to their use, please contact us immediately so that Evolve can disable his or her account.  You accept full responsibility for any unauthorized use of the Evolve Platform by Your child.

2        Registration.

2.1       To fully use the Evolve Platform, You must register for an account by providing a valid user name, password, email address, date of birth [and pay the applicable fees as set out below].  You agree that the information You provide to Evolve on registration and at all other times will be true, accurate, current, and complete.  You also agree that You will ensure that this information is kept accurate and up-to-date at all times.

2.2       If You are under the age of 18 You must obtain Your parent or guardian’s consent for You to use the Evolve Platform.

2.3       You are responsible for all activity that occurs under Your account, including any unauthorized activity. You must not allow others to use Your account. You must safeguard the confidentiality of Your password. If You are using a computer that others have access to, You must log out of Your account after using the Evolve Platform. You agree to accept responsibility for all activities that occur under Your account or password.  You may be liable for the losses incurred by Evolve or others due to any unauthorized use, so if You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to change Your password and notify us immediately at support@evolvefunctionalfitness.com.

3        Payment and Cancellation.

3.1       If You register to use the Evolve Platform, You agree to pay to Evolve all the fees as posted on the Website or as agreed to from time to time. You will also pay or reimburse Evolve for all sales, use, excise, and other taxes and governmental charges including HST (other than income taxes), which Evolve is required to pay or collect in connection with the furnishing of the Evolve Platform under these Terms.

3.2       You agree that Evolve may immediately authorize Your credit card for payment for any account made under Your user name and password. You are responsible for any use of Your credit card or other payment instrument by Your child.

3.3       You will be charged monthly for Your account on the Evolve Platform, which shall be automatically charged to the credit card provided. Your subscription will continue on a month- to-month basis unless and until You cancel your subscription or we terminate it. You must cancel Your subscription before it renews each month in order to avoid billing of the next month’s subscription fees to your payment instrument.

3.4       All payments made to Evolve are non-refundable, and will not be pro-rated.  You may cancel Your account at anytime.

3.5       Evolve may change the amount of the monthly basic service and other fees to be paid by You at any time in accordance with the pricing terms on its Website.

3.6       Unless otherwise stated, all dollar amounts referred to are in Canadian currency, and all amounts owing from time to time under these Terms shall be payable in Canadian currency. If you are using a local currency the actual amount may fluctuate based on currency exchanges rates.

4        Safeguards and Your Information

4.1       To safeguard Your information, Evolve uses a restrictive firewall to protect stored data and uses SSL certificates to encrypt data during transfer between You and Evolve.

4.2       All credit card and/or financial information submitted by You to Evolve shall at no times be the responsibility of Evolve in any fashion whatsoever and may be shared with financial institutions as may be required. You shall indemnify and save Evolve harmless from any claim or demand resulting from the theft or loss of any financial information.

5        Privacy: Additional Terms.

Your privacy is important to Evolve.  Evolve’s Privacy Policy is hereby incorporated into these Terms by reference.  Please read Evolve’s Privacy Policy carefully for information relating to Evolve’s collection, use, and disclosure of Your personal information.

6        Individual Features and Services.

When using the Evolve Platform, You will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”).  All such Guidelines are hereby incorporated by reference into these Terms.

7        Modification of these Terms.

Evolve reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time, for any reason, without advanced notice or liability.  Please check these Terms and any Guidelines periodically for changes.  The currency of these Terms is indicated by the “Lasted Updated” date at the beginning of these Terms. Your continued use of the Evolve Platform after the posting of changes constitutes Your binding acceptance of such changes.

8        Evolve Platform License Grant.

8.1       License Grant.

Subject to Your compliance with these Terms, Evolve hereby grants to You a limited, non-exclusive, non-transferable, freely revocable license to view, download (including, without limitation download to a portable device), print, and have printed select content for personal use, except as Evolve may restrict or block at the request of its content providers or on its own initiative.

8.2       Reservation of Rights.

Evolve reserves all rights not expressly granted in these Terms.

8.3       Prevention of Unauthorized Use.

Evolve reserves the right, in its sole discretion, to exercise whatever lawful means it deems necessary to determine and ensure Your compliance with the Terms and to prevent any actual or suspected unauthorized use of the Evolve Platform, including, but not limited to, monitoring Your use of the Platform, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use. Notwithstanding the foregoing, Evolve shall be under no obligation to monitor, review, screen, edit, or otherwise control Your use of the Evolve Platform.

9        Content Disclaimer.

You understand that when using the Evolve Platform You will be exposed to content from a variety of sources, and that Evolve is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such content.  You further understand and acknowledge that You may be exposed to content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against Evolve with respect thereto.  Evolve does not endorse any content or any opinion, recommendation, or advice expressed therein, and Evolve expressly disclaims any and all liability in connection with content.  If notified by a User or a content owner of content that allegedly does not conform to these Terms, Evolve may investigate the allegation and determine in its sole discretion whether to remove the content, which it reserves the right to do at any time and without notice.  For clarity, Evolve does not permit copyright infringing activities on the Evolve Platform.

10     User Content and Prohibited Conduct.

10.1    All information, software, data, text, messages, links music/sound, photographs, graphics, video, messages or other material You provide in association with Your use of the Platform, or any portion thereof (“User Content”), are Your sole responsibility and You represent and Warrant that You have the right to use such User Content in association with Platform.

BY USING THE EVOLVE PLATFORM YOU AGREE NOT TO:

10.2    use the Evolve Platform for any purposes other than to receive original or appropriately licensed content, to add User Content, and/or to access the Evolve Platform as such services are offered by Evolve;

10.3    rent, lease, loan, sell, resell, sublicense, distribute, display or otherwise transfer the licenses granted herein or any Materials (as defined in section 13, below);

10.4    post, upload, or distribute any defamatory, libelous, or inaccurate User Content;

10.5    post, upload, or distribute any User Content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, invasive of another’s privacy, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;

10.6    use someone else’s name, an obscene name, a name that violates any third party right, or impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Evolve Platform accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the Evolve Platform, or perform any other similar fraudulent activity

10.7    delete the copyright or other proprietary rights notices on the Evolve Platform or associated with any content available via the Evolve Platform;

10.8    make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Evolve Platform. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;

10.9    use the Evolve Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;

10.10 defame, harass, abuse, threaten or defraud Users of the Evolve Platform, or collect, or attempt to collect, personal information about Users or third parties without their consent;

10.11 remove, circumvent, disable, damage or otherwise interfere with Technological Protection Measures (TPM) or Digital Rights Management (DRM) and/or other security-related features of the Evolve Platform features that prevent or restrict use or copying, printing, or sharing of any content accessible through the Evolve Platform, or features that enforce limitations on the use of the Evolve Platform or any content available via the Evolve Platform;

10.12 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Evolve Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

10.13 modify, adapt, translate or create derivative works based upon the Evolve Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

10.14 intentionally interfere with or damage operation of the Evolve Platform or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;

10.15 relay email from a third party’s mail servers without the permission of that third party;

10.16 use any robot, spider, scraper, or other automated means to access the Evolve Platform for any purpose or bypass any measures Evolve may use to prevent or restrict access to the Evolve Platform;

10.17 forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Evolve Platform;

10.18 interfere with or disrupt the Evolve Platform or servers or networks connected to the Evolve Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Evolve Platform; or

10.19 post, upload or distribute marketing material, advertisements, spam, content designed to aid search engine optimization, content in HTML format with links or redirects, or other content that in Evolve’s sole opinion detracts from the Evolve experience.

11     Third-Party Sites, Products and Services; Links.

The Evolve Platform may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”).  Unless otherwise expressly stated by Evolve, Evolve has no control over, does not endorse and disclaims any liability for any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites.  In addition, Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Evolve Platform are solely between You and such advertiser.  Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at Your own risk and Evolve shall not be held responsible for any loss or damage that You may incur as a consequence thereto.

12     Termination; Terms of Use Violations.

12.1    Evolve.

You agree that Evolve, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Evolve or Your use of the Evolve Platform and remove and discard all or any part of Your account, User profile, and any [of Your] content, at any time.  Evolve may also in its sole discretion and at any time discontinue providing access to the Evolve Platform, or any part thereof, with or without notice.  You agree that any termination of Your access to the Evolve Platform or any account You may have or portion thereof may be effected without prior notice, and You agree that Evolve will not be liable to You or any third party for any such termination.  Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities.  These remedies are in addition to any other remedies Evolve may have at law or in equity.

12.2    Remedies.

Your only remedy with respect to any dissatisfaction with (i) the Evolve Platform, (ii) any term of these Terms, (iii) any policy or practice of Evolve in operating the Evolve Platform, or (iv) any content or information transmitted through the Evolve Platform, is to close Your account and stop using the Evolve Platform and/or the App and/or Website.  Subject to payment of any applicable Fees, You may terminate these Terms at any time by discontinuing use of Evolve.

13     Ownership; Proprietary Rights.

The Evolve Platform is owned and operated by Evolve.  The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code), products, services, and all other elements of the Evolve Platform provided by Evolve (the “Materials”) are protected by Canadian copyright, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  Evolve acknowledges that You retain ownership of any User Content You may post via Evolve, subject however to Your grant to Evolve of a perpetual, irrevocable, royalty-free, worldwide, nonexclusive license to reproduce, store, distribute, publicly display, and adapt them for use in conjunction with the operation of the Evolve Platform.  All Materials contained on the Evolve Platform are the property of Evolve or its subsidiaries or affiliated companies and/or third-party licensors.  All trademarks, service marks, and trade names are proprietary to Evolve or its affiliates and/or third-party licensors.  Except as expressly authorized by Evolve, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials or the Evolve Platform.  Evolve reserves all rights not expressly granted in these Terms.

14     Indemnification.

You agree to indemnify, defend, save, and hold Evolve, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the Evolve Platform, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein.  Evolve reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Evolve, and You agree to cooperate with Evolve’s defense of these claims.  Evolve will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.

15     Disclaimers; No Warranties, Professional/Medical Disclaimer.

15.1    Disclaimers; No Warranties.

THE EVOLVE PLATFORM, WEBSITE AND APP ARE OFFERED ON AN AS IS, AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EVOLVE, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVOLVE OR THROUGH THE EVOLVE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.  YOU EXPRESSLY ACKNOWLEGE THAT AS USED IN THIS SECTION 14, THE TERM EVOLVE INCLUDES EVOLVE’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.

15.2    Professional/Medical Disclaimer.

Professional Advice Disclaimer.

YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR   TREATMENT.

THE INFORMATION AND MATERIALS CONTAINED ON THE EVOLVE PLATFORM ARE PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. 

IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE EVOLVE SITE. THE USE OF ANY INFORMATION PROVIDED ON THE EVOLVE PLATFORM IS SOLELY AT YOUR OWN RISK.

NOTHING STATED OR POSTED ON THE WEBSITE OR AVAILABLE THROUGH ANY EVOLVE PLATFORM ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.

THE EVOLVE PLATFORM IS CONTINUALLY UNDER DEVELOPMENT AND EVOLVE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL INFORMATION THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE WEBSITE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

Medical Disclaimer.

In using the Evolve Platform, You affirm that either (A) all of the following statements are true: (i) no physician has ever informed You that You have a heart condition or that You should only do physical activities recommended by a physician; (ii) You have never felt chest pain when engaging in physical activity; (iii) You have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) You have never lost Your balance because of dizziness and You have never lost consciousness; (v) You do not have a bone or joint problem that could be made worse by a change in Your physical activity; (vi) Your physician is not currently prescribing drugs for Your blood pressure or heart condition; (vii) You do not have a history of high blood pressure, and no one in Your immediate family has a history of high blood pressure or heart problems; and (viii) You do not know of any other reason why You should not exercise.

If applicable, You further affirm that (A) You are not pregnant, breastfeeding or lactating or (B) Your physician has specifically approved Your use of Evolve Platform.

Evolve reserves the right to refuse or terminate its agreement with You if it determines that You have certain medical conditions.

16     Limitation of Liability and Damages.

16.1    Limitation of Liability.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL EVOLVE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS AND CONTENT ON THE EVOLVE PLATFORM OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH EVOLVE, EVEN IF EVOLVE OR AN EVOLVE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.2    Limitation of Damages.

IN NO EVENT WILL THE TOTAL LIABILITY OF EVOLVE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF THE EVOLVE PLATFORM OR YOUR INTERACTION WITH OTHER EVOLVE PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE EVOLVE PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

16.3    Reference Sites.

THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN EVOLVE AND RECEIVED THROUGH OR ADVERTISED ON THE EVOLVE PLATFORM OR RECEIVED THROUGH ANY REFERENCE SITES.

16.4    Basis of the Bargain.

YOU ACKNOWLEDGE AND AGREE THAT EVOLVE HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND EVOLVE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EVOLVE. EVOLVE WOULD NOT BE ABLE TO PROVIDE THE EVOLVE PLATFORM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

16.5    Limitations by Applicable Law.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.  THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

17     Digital Millennium Copyright Act.

17.1    Evolve respects the intellectual property rights of others and attempts to comply with all relevant laws. Evolve will promptly remove materials from the Website in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright. In addition, Evolve may, in appropriate circumstances, terminate the accounts of copyright infringers.  If You believe that Your work has been copied on the Evolve Platform in a way that constitutes copyright infringement, please provide us with notice in accordance with the requirements of the DMCA, including:

Your name, address, telephone number, and email address (if any).

A description of the copyrighted work that You claim has been infringed.

A description of where on the Evolve Site the material that You claim is infringing may be found, sufficient for Evolve to locate the material (e.g., the URL).

A statement that You have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.

A statement by You UNDER PENALTY OF PERJURY that the information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.

Your electronic or physical signature.

You may submit this information via email at copyright@evolvefunctionalfitness.com or at the following address:

 

469A King Street West

Toronto, ON M5V 1K4

Canada

Fax: (416) 591-0075

17.2    In filing a DMCA notice, please make sure that You have complied with all of the above requirements. If we request additional information necessary to make Your DMCA notice complete, please provide that information promptly. If You fail to comply with all of these requirements, Your DMCA notice may not be processed further.

17.3    In addition, please make sure that all of the information You provide is accurate. UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MATERIALLY MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION MAY BE SUBJECT TO LIABILITY.

17.4    Evolve may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.

17.5    If You have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If You have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.

18     Apple Device and App terms.

18.1    AppStore. The App is obtained through Apple’s software distribution platform (“AppStore”) (“Services”).

18.2    Parties.  You and Evolve acknowledges that these Terms are between You and Evolve only, and not with Apple, Inc. (“Apple”) and that Apple is not responsible for the App or the content contained therein.  Although Apple is not a party to this agreement, Apple has the right to enforce these Terms against You as a third party beneficiary.

18.3    Limited License. Evolve grants You a limited, non-exclusive, non-transferrable, revocable license to use the App for Your personal, non-commercial purposes as further described herein. You may only use the App on an iPhone®, iPod® Touch, iPad®, or other Apple device that You own or control and as permitted by the AppStore Terms of Service.

18.4    Intellectual Property. Evolve shall not be obligated to indemnify or defend You with respect to any third party claim arising out or relating to the App. To the extent Evolve is required to provide indemnification by applicable law, Evolve, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the App or Your use of it infringes any third party intellectual property right.

18.5    Product Claims. Evolve, not Apple, is responsible for addressing any claims by You relating to the App or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in these Terms shall be deemed an admission that You may have such claims.

18.6    US Legal Compliance.  You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

19     Miscellaneous.

19.1    Notice. Evolve may provide You with notices, including those regarding changes to Evolve’s terms and conditions, by email, regular mail, or postings on the Evolve Platform.  Notice will be deemed given twenty-four hours after email is sent, unless Evolve is notified that the email address is invalid.  Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Evolve Platform.  In such case, notice will be deemed given three days after the date of mailing.  Notice posted on the Evolve Platform is deemed given ten days following the initial posting.

19.2    Waiver. The failure of Evolve to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.  Any waiver of any provision of these Terms will be effective only if in writing and signed by Evolve.

19.3    Governing Law. These Terms will be governed by and construed in accordance with the laws of the province of Ontario, and the federal laws of Canada applicable therein, without giving effect to any principles of conflicts of law.

19.4    Jurisdiction.  You agree that any action at law or in equity arising out of or relating to these Terms or Evolve will be filed only in the province of Ontario or the federal courts of Canada, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.

19.5    Severability.  If any provision of these Terms including any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

19.6    Assignment.  These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Evolve without restriction.  Any assignment attempted to be made in violation of these Terms shall be void.

19.7    Survival.  Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 7- 19.

19.8    Headings.  The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

19.9    Entire Agreement. These Terms (including all Guidelines and terms incorporated herein) are the entire agreement between You and Evolve relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by Evolve as set forth in section 4 above.

19.10 Language. You and Evolve confirm that it is their wish that these Terms, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language only.  Toi et Evolve aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.

19.11 Claims.  YOU AND EVOLVE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE EVOLVE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

19.12 Disclosures. The services are offered by Evolve Functional Fitness Inc., located at: http://www.evolvefunctionalfitness.com, 469A King Street West, Toronto, Ontario M5V 1K4, Canada and email: support@evolvefunctionalfitness.com.

 

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