TERMS OF SERVICE
Lean On Digital – ToS
Date of Last Revision: April 22, 2021
These Terms of Service are Legally binding.
Lean On Digital, Inc. (“LEAN ON DIGITAL” “we,” “us,” “our”) is a US based company operating an online white label fitness platform Lean on digital (“Platform”), helping various clients in fitness industry by developing, licensing and operating mobile applications for fitness purposes with their brand, services and content. We provide services through our content management system and mobile applications (the “App”) and provide information about our services through our websites at leanondigital.com (the “Site”) subject to the following Terms of Service (as amended from time to time, the “Terms”). A license for the App may be purchased under one of our packages we offer (“Packages”), subject to these Terms and terms and conditions of the selected Package.
In these Terms you may be designated as the “Fitness Partner” or “you”.
These Terms regulate certain rights and obligations among you and us in relation to the usage of the App, provision of services by you. Please read these Terms carefully before accepting it. In case there are discrepancies between the Terms and the Package selected by you, the provisions of such Package shall apply.
These Terms are effective between you and LEAN ON DIGITAL as of the date you indicate your acceptance. If you do not agree to these Terms, please note that we may need to suspend or discontinue provision of our services to you.
In order to use our services, you must:
1. be at least eighteen (18) years old and able to enter into contracts;
2. complete the account registration process;
3. agree to these Terms and terms of the Package you selected as the case may be;
4. provide true, complete, and up-to-date contact and billing information as well as other information that may be requested;
5. not be based in Cuba, Iran, North Korea, Syria, or any other territory 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
6. not be listed on any U.S. government list of prohibited or restricted persons.
By using our services, you represent and warrant that you meet all the requirements listed above, and that you will not use our services in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.
Article 1. Use of the App, Upgrade
LEAN ON DIGITAL will provide the App , together with functionalities under the Package selected by you, to be available to you, subject to the terms and conditions of these Terms and the Package selected by you.
Notwithstanding the above, in addition to our rights set forth in Article 13, we reserve the right to temporarily suspend the use of the App: (i) in connection with a Force Majeure event (as described below), (ii) if we believe any malicious software is being used in connection with your account or account(s) of the App users, (iii) during planned downtime you were notified in advance, or (iv) other events that require temporary shutdown of the App and upon which you were notified in advance.
Notwithstanding the above, LEAN ON DIGITAL may (but will not be obliged to), from time to time, provide upgrade to the App by offering improved and/or new features. Such upgrades will be based on information obtained by Fitness Partner, App users, LEAN ON DIGITAL’s other fitness partners and users of apps such partners are licensed to use, and in no case shall it be deemed that upgraded App version is automatically offering better functions than the version prior to the upgrade. You understand and agree that LEAN ON DIGITAL is entitled to make such upgrades to the App and release them on the relevant application store without your further consent, provided that LEAN ON DIGITAL notifies you of any such release.
The App may allow you to access or use third party offerings, however third party offerings are not “App” under these Terms or the Package selected by you and are not subject to any of the warranties, service commitments or other obligations with respect to the App hereunder. The availability of any third party offerings through the App does not imply LEAN ON DIGITAL’s endorsement of or affiliation with the provider. If agreed by under the Package you selected, that the App allows you promoting third party offerings within the App (including your sponsors in any form, directly or indirectly) it is your sole responsibility. LEAN ON DIGITAL shall be held harmless and indemnified in case it was held liable in any manner for any issues concerning or in connection with such third party offerings. LEAN ON DIGITAL does not control third party offerings and will have no liability to you or affiliates or users of the App (the term “users of the App” or “App users” or similar phrases is deemed to include persons that download and use the App) in connection with any third party offerings. LEAN ON DIGITAL has no obligation to monitor or maintain third party offerings and may disable or restrict access to any third party offerings (regardless they are used or promoted via App) in case they are against these Terms or the Package selected by you. By using, enabling or promoting any third party offerings, you are expressly permitting LEAN ON DIGITAL to disclose your data or other information to the extent necessary to utilize the third party offerings. Your use or promotion of third party offerings is at your own risk and is subject to any additional terms, conditions and policies applicable to such third party offerings (such as terms of service or privacy policies of the providers of such third party offerings).
You and LEAN ON DIGITAL may agree that LEAN ON DIGITAL will provide you with additional services, such as support services, marketing services or other services (“Additional Services”). Any Additional Services may be agreed at any time during the business relationship with you. In case that any of such services are agreed by you and LEAN ON DIGITAL, these Terms shall apply to the extent not regulated or not opposing to such additional agreement.
LEAN ON DIGITAL may in its sole discretion offer free, trial or beta version of the App and/or any additional services from time to time or for a certain period at no charge or with discount. Notwithstanding anything to the contrary herein: (a) any free, trial or beta version of the App and/or any additional services are provided “AS IS” with no warranties of any kind; and (b) LEAN ON DIGITAL may discontinue any free, trial or beta version of the App and/or any additional services or your ability to use such version of the App and/or any additional services at any time, with or without notice and without any further obligations to you. LEAN ON DIGITAL will have no liability for any harm or damages suffered by you or any third party (including App users) in connection with any free, trial or beta version of the App and/or any additional services.
You acknowledge and agree that the use and availability of the App are dependent on the third party from whom administers certain activities relating to the Apps, e.g., the Apple App Store, Google Play, or a similar source (“application store”). You acknowledge that these Terms are between you and LEAN ON DIGITAL and not with the application store. You agree and accept terms and conditions of the payment of all fees (if any) charged by the application store in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the relevant application store’s terms and policies). You acknowledge that the relevant application store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce them. Non-compliance with such terms that has any material or immaterial effect on the business of LEAN ON DIGITAL shall entitle LEAN ON DIGITAL to terminate the business relationship with you in accordance with the Article 13 hereof.
Article 2. Adjustment of the App
In accordance with the Package you selected LEAN ON DIGITAL will use its Platform in order to adjust as the case may be and upload mobile application developed by LEAN ON DIGITAL that will be licensed to you to be used for the purposes of your fitness business. The App can be used and downloaded on the application store .
If the Package you selected prescribes adjustments of the App, you are obliged to provide LEAN ON DIGITAL with the initial content necessary for the adjustment of the App, together with your trademark, logo and possible other signs of recognition of your brand and public image, as presented in the Package selected by you.
The App will be equipped with your trademark and logo, as well as possible other signs of recognition of your brand and public image requested by you under the terms and conditions of the selected Package. LEAN ON DIGITAL shall be entitled to put its trademark and text on suitable place within the App in order to identify itself as App producer/developer.
If the Package you selected prescribes adjustments of the App, the following shall apply:
i) the App will be based on technology and functionalities developed by LEAN ON DIGITAL and presented to you prior uploading on the Platform;
ii) you will provide necessary input on the appearance and additional functionalities of the App under the terms of the Package selected by you (for example, and without limitations, trademark/brand, design of the App, etc.);
iii) LEAN ON DIGITAL shall adjust the App upon your input; and
iv) you shall confirm that the App has been adjusted in accordance with the Package you selected, and upload of such App and the licensing period of the App shall start.
After your necessary input under point ii) above has been successfully provided per discretion of LEAN ON DIGITAL, the App can be adjusted in a timeframe designated under the Package you selected. In case you require additional changes to the agreed scope of work under the selected Package or your requests require additional time to adjust the App or some of its features (including changes to the design) and LEAN ON DIGITAL agrees to that, the time for the App adjustment shall be prolonged for a reasonable time to fulfill such requests. You agree and acknowledge that mentioned timeframe is not considered as the obligatory term for delivery of the App and that the actual time for the adjustment of the App may vary based on, among other things, technical and manpower possibilities of LEAN ON DIGITAL to adjust the App and your input and feedback.
Nothing in this Article 2 of these Terms shall be deemed as to decrease the rights of LEAN ON DIGITAL presented in these Terms and the Package selected by you.
Article 3. Content and Features of the App
The App shall enable you to provide your own content on the App by providing web-based platform for such use. Such content, as presented to you in the model application prior to your acceptance of these Terms and the Package selection, may include video lessons and other fitness materials offered by you, posts and blogs published to App users, training diaries, promotions of new materials and training features, running live events, etc. LEAN ON DIGITAL shall aim, if possible, under the Package selected by you and if LEAN ON DIGITAL agrees so, to enable you and the App users to make posts and leave comments on the App feed in order to create audience engagement. You are aware and hereby acknowledge that the functionalities may differ from those enlisted in the Package selected by you.
You shall be solely responsible and liable for the content you have provided within the App. Such content shall be made in accordance with the terms of mobile operating system providers (e.g. Google Play and Apple Store), and it is your sole obligation to periodically review and follow any changes to such terms.
You hereby grant to LEAN ON DIGITAL a non-exclusive, non-transferable, royalty-free, fully paid-up limited license during the term of business relationship with LEAN ON DIGITAL to use your trade names, brands, logos, product names, trademarks, and service marks if any, (collectively, the “Marks”), for the sole purpose of fulfillment obligations arising out of the business relationship with you.
LEAN ON DIGITAL shall be held harmless for any content of the App, in accordance with these Terms and/or terms set out in the Package selected by you.
Article 4. Monetization of the App, Fees and Payment
Fitness Partner may use the App to, among other, offer purchase of its fitness related services that may include, but are not limited to, video training courses, training courses in other forms and other fitness related services that may be presented and/or promoted within the App (“Services”).
When you decide to use our services by selecting the Package and accepting these Terms, you will be required to provide us with your credit card details. By selecting the Package and accepting these Terms you authorize us to charge your credit card third-party payment gateway provider for all agreed fees payable during the business relationship with you. If you do not provide us with your credit card details or we are unable to charge your credit card for any reason, please note that we may need to suspend or discontinue provision of our services to you.
Fitness Partner may use the App to offer purchase of Services and freely monetize use of the Services without limit for the Fitness Partner in revenue it may have, under condition that such monetization is performed in accordance with terms of mobile operating system providers (e.g. Google Play and Apple Store), these Terms and the terms of the Package selected by you (“Service Fee”).
You are obliged to pay to us:
– retainer fees prescribed under the selected Package. We will charge your credit card for this amount on a monthly basis, at the beginning of each 30 days period of use of App , during the term of relationship with you (“Retainer Fee”);
-commission fee for every purchase of the Services offered via App if it is prescribed under the Package you selected and in the amount prescribed under such Package (“Commission Fee”)
– fee for the Additional Services that may be agreed between you and us (“Additional Service Fee”)
If the Service Fee is collected through payment gateway provider on our account, you hereby authorize us to collect the Commission Fee and the Additional Services Fee as the case may be, from the received amount of the Service Fee. If there are not enough funds to collect the Commission and the Additional Services Fee, we will charge your credit card for the Commission Fee and the Additional Services Fee.
If the Service Fee is collected through payment gateway provider on your account, we will charge your credit card for the amount of the Commission Fee and the Additional Services Fee.
Fitness Partner shall receive the amount of the Service Fee, reduced by payment gateway providers’ transaction fee and the Commission Fee and the Additional Services Fee. You acknowledge that amount of payment gateway providers’ transaction fee is determined by terms of those parties and that LEAN ON DIGITAL cannot in any way influence the amount of such fee.
If we are involved in payment processing of purchases of the Services, Fitness Partner’s Fee shall be calculated and paid to Fitness Partner ten business days after the collection of funds from all mobile operating system providers (e.g. Apple and Google Play). LEAN ON DIGITAL doesn’t make payouts on weekends or holidays. If a payout date falls on a Saturday, we won’t start the payout until the following Monday.
LEAN ON DIGITAL will provide you with valid and updated calculation of the purchased Services and their amount, fees and surcharges that shall be paid to payment gateway providers if applicable, the amount of the Service Fee, the Commission Fee and Additional Services Fee, if applicable, calculated in accordance with these Terms and the Package you selected. You agree to verify any information requested by LEAN ON DIGITAL for purposes of acknowledging or completing any payment. Any amount owed past due time shall entitle us to collect owed amounts increased for 1,5% default interest rate per annum. You agree that we are entitled to collect such amount by any means, including but not limited to charge your credit card, prior to paying you the Service Fee in accordance with these Terms.
Regarding payments owed to you, any due amount not received by you after the applicable due date shall not be deemed as a default under these Terms or the terms of the Package selected by you, and you will not be entitled to either suspend or terminate the business relationship with us. Your only recourse in such case shall be to collect owed amounts increased for 1,5% default interest rate per annum.
If you believe a payment has been processed in error, you must provide written notice to LEAN ON DIGITAL within five (5) days after the date of payment specifying the nature of the error and the amount in dispute. If such notice is not received by LEAN ON DIGITAL within such five (5) day period, the payment will be deemed final.
Unless otherwise provided, all fees owed to LEAN ON DIGITAL do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (“taxes”), and you are responsible for paying all such taxes. For clarity, LEAN ON DIGITAL will be solely responsible for taxes assessed on LEAN ON DIGITAL based on its income. Also, when selling the Services, you are responsible for paying all taxes associated with purchases and transactions within the App. If LEAN ON DIGITAL is legally required to pay or collect any taxes on your behalf, LEAN ON DIGITAL will invoice you and you will pay the invoiced amount. You acknowledge and agree that we may make certain reports to tax authorities if necessary (e.g., filling necessary tax forms).
Monetization and payment of the Additional Services shall be further governed in accordance with the terms of additional services related to each specifically defined Additional Service.
Article 5. Payment Processing, Relations with application stores
The App allows users to purchase the Services. Services offered within the App may be purchased in accordance with terms and conditions set by payment gateway providers. You accept and agree that we shall enter into the payment processing services agreement (or any other) with payment gateway providers that will enable purchase of the Services. You agreed on all the fees and surcharges for use of services of payment gateway providers in accordance with their pricing policy and shall not hold us accountable for any errors or discrepancies regarding or in connection with such fees and surcharges or their collection. You agree to provide LEAN ON DIGITAL accurate and complete information about you and your business, and you authorize LEAN ON DIGITAL to share it with payment gateway providers.
Article 6. Relations with App Users
You shall be responsible for all activity occurring under or relating to the App, including, but not limited to, your staff, employees, consultants, advisors, independent contractors and companies under your direct or indirect control (herein referred to as “your affiliates”), and users of the App. You will ensure that your affiliates and users of the App comply with relevant provisions of these Terms, the Package selected by you (where applicable in relevant part), acceptable use policies provided or made available by LEAN ON DIGITAL, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the App. Any reference in these Terms to your “access” or “use” of App (or similar phrase) is deemed to include access or use, as appropriate, by affiliates and/or users of the App, and any act or omission of an affiliate that does not comply with these Terms and the Package selected by you will be deemed a breach of these Terms and the terms of the Package by you. Any act or omission of App users that does not comply with these Terms and the Package selected by you will be deemed a breach of these Terms and the terms of the Package by you and in such case we may, additionally to our other rights, request you to immediately remove content that represents violation of these Terms and the terms of the Package you selected. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact App users through the App, as applicable, in accordance with applicable laws and regulations.
You (including your affiliates) and App users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the App, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the App or the data contained therein; (iii) attempt to gain access to the App or related systems or networks in a manner not permitted by these Terms or the Package you selected; (iv) post, transmit or otherwise make available through or in connection with the App any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the App; (vi) remove any copyright, trademark or other proprietary rights notice from the App; (vii) frame or mirror any portion of the App, or otherwise incorporate any portion of the App into any product or service; (viii) systematically download and store App content; or (ix) use the App to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather App content, or reproduce or circumvent the navigational structure or presentation of the App. In certain cases, and under written permission of LEAN ON DIGITAL, LEAN ON DIGITAL may grant certain persons to create files for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of materials presented within the App, but not caches or archives of such materials. LEAN ON DIGITAL reserves the right to revoke these permissions at any time and without notice.
You acknowledge and agree to use the App only to send electronic messages or post content on the App to App users or potential App users that have directly consented to receive them and in accordance with applicable law and regulations as well as LEAN ON DIGITAL’s internal documents. Transmission of unsolicited electronic messages via the App is prohibited and shall be deemed to present breach of these Terms and the terms of the Package you selected.
LEAN ON DIGITAL may reject or require that you change any user name or password under your accounts. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of LEAN ON DIGITAL. You, and not LEAN ON DIGITAL, are responsible for any use or misuse of user names or passwords associated with your accounts.
Article 7. Maintenance of the App, Other services
LEAN ON DIGITAL will provide maintenance of the App in sense that it will take reasonable care to enable functioning of the App for its usual purpose (for example, removal of “bugs”), in accordance with the Package you selected and these Terms.
LEAN ON DIGITAL shall aim to regularly provide upgrades to the App, in accordance with these Terms.
LEAN ON DIGITAL may provide other services to you if we and you reach such agreement. For the avoidance of doubt these Terms shall apply to such additional services.
Article 8. License to Use the App
If you choose one of our Packages, LEAN ON DIGITAL grants you a license to use, operate and monetize the App after it was adjusted, as the case may be, and uploaded, in accordance with these Terms and the Package you selected.
The App will be licensed for the use on markets defined under the Package you selected.
The App cannot be used to post Google AdWords or other similar adverts that are not generated by Fitness Partner within its content provided within the App. The previous does not affect the right of Fitness Partner to promote its sponsors and other business partners as long as such promotion is made through the content provided in the App and in accordance with these Terms and the selected Package.
The App, including content posted by users of the App, cannot be used against the terms of mobile operating system providers (e.g. Google Play and Apple Store) and any content contrary to those terms shall be immediately removed. Besides and in addition to what is prohibited in these Terms, the App cannot be used for proliferation of gambling, pornography, discrimination or racism of any form as well as for other uses that may cause damage to the image of LEAN ON DIGITAL.
Article 9. Intellectual Property Rights and Licenses
All Services and entire content otherwise provided in the App, together with Fitness Partner’s Marks shall be and shall remain sole ownership of Fitness Partner, save where otherwise provided herein.
LEAN ON DIGITAL shall remain the sole owner of the Platform and the App, in accordance with these Terms.
LEAN ON DIGITAL or its affiliates own all right, title and interest in and to the App, the LEAN ON DIGITAL owned data and aggregated data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under these Terms, LEAN ON DIGITAL and its affiliates reserve all rights, title and interest in and to the App, the LEAN ON DIGITAL owned data and aggregated data including, without limitation, all related intellectual property rights. As between you and LEAN ON DIGITAL, all LEAN ON DIGITAL trademarks, logos or other signs of recognition are owned by LEAN ON DIGITAL or its affiliates. You agree not to display or use any LEAN ON DIGITAL trademarks, logos or other signs of recognition in any manner without LEAN ON DIGITAL’s express prior written permission. Any trademarks, logos or other signs of recognition associated with a third party offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
Subject to the terms and conditions of these Terms, LEAN ON DIGITAL hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable (except for the purpose of enabling App users to use App during the term of the business relationship) revocable license and right to use the App set forth under the Package selected by you, during the term of our relationship with you and solely for your internal business purposes . You will not: (a) modify, copy or create any derivative works based on the App; (b) license, sublicense (except for the purpose of enabling App users to use App during the term of our relationship with you ), sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the App available to any third party, other than to your affiliates and App users as permitted herein; (c) reverse engineer or decompile any portion of the App, including but not limited to, any software utilized by LEAN ON DIGITAL in the provision of the App; (d) access or use (or allow a third party to access or use) the App for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the App; or (f) otherwise use or exploit the App in any manner not expressly permitted by these Terms or the Package you selected.
You hereby grant to LEAN ON DIGITAL and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (i) modify, copy, distribute and incorporate into the App (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, your affiliates or App users relating to the App or LEAN ON DIGITAL’s or its affiliates’ business(es); and (ii) to use your business name(s), trademarks, service marks, logos or any publicly available images in connection with: (i) providing the App, (ii) for marketing and promotional purposes in connection with LEAN ON DIGITAL’s business, and (iii) for marketing the App and other applications provided by LEAN ON DIGITAL and its affiliates. LEAN ON DIGITAL agrees that any use by LEAN ON DIGITAL of any of your rights mentioned herein will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to LEAN ON DIGITAL or its affiliates herein, all right, title and interest in and to your rights mentioned herein are expressly reserved by you.
LEAN ON DIGITAL respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted to us, including our intellectual property policies that may be enacted by LEAN ON DIGITAL and as may be updated by LEAN ON DIGITAL from time to time (and of which you will be notified). Any data or information submitted to the App is subject to these Terms and our intellectual property policies. You understand and agree that LEAN ON DIGITAL may enact additional internal rules on intellectual policy and content of the App, governing such property and content and that you will comply with them irrespective of rights provided to you by the Package you selected. You also agree that any content posted within the App by App users and you may be removed by LEAN ON DIGITAL without notice to you in case they oppose our internal policies.
Article 10. Data Ownership and Data Use
LEAN ON DIGITAL shall provide servers and storage for the user data obtained while using the App, without additional cost for the Fitness Partner. Servers shall be located in the United States of America.
As between you and LEAN ON DIGITAL, you own all right, title and interest in your information which include any data, information or material provided or submitted or made available by you and your affiliates in relation to the Services offered by you within the App. You hereby grant to LEAN ON DIGITAL a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use your information for the purposes of providing, improving and developing the App, LEAN ON DIGITAL’s or its affiliates’ products and services and/or complementary products and services of our partners. Such use shall not be in confrontation to your business model or aimed at competing with you in any manner. You represent and warrant to LEAN ON DIGITAL that you have all rights necessary to grant the licenses in this Article 10.2, and that your provision and use of your information through and in connection with the App does not violate any applicable laws or rights of any third party.
Notwithstanding Article 10.2, all right, title and interest in any data or information, including for the avoidance of doubt any and all personal information (as the same may be defined as personal information in all applicable jurisdictions) collected through the App independently and without access to, reference to or use of any of your information, including, without limitation, any data or information LEAN ON DIGITAL obtains about App users through the App (including those obtained while creating user profile), will be solely owned by LEAN ON DIGITAL and can be used by LEAN ON DIGITAL or third parties LEAN ON DIGITAL provides them in any form, without any restrictions from your side. You also agree that LEAN ON DIGITAL will own, under the same conditions as presented above, all aggregated data, provided that such aggregated data collected by using the App do not reveal any personally identifying information about you or any App user or is reasonably linkable to any App user or household.
All information collected through the App, regardless whether owed by your or owed by LEAN ON DIGITAL, shall be stored on servers located in the United States of America. LEAN ON DIGITAL may provide you with insight into the information owed by LEAN ON DIGITAL at your reasonable request in connection with: (i) performance of our obligations under the Package selected by you and these Terms; or (ii) for statistical purposes (for example, to understand the cost of customer acquisition); and (iii) for conducting marketing campaign. Any information owned by you or us arising out of or in connection with your business relationship with us and these Terms may not be exported to other company being direct or indirect competitor to LEAN ON DIGITAL or LEAN ON DIGITAL Affiliates. LEAN ON DIGITAL shall be entitled to deny any such request from your side, at LEAN ON DIGITAL’s sole discretion. LEAN ON DIGITAL may revoke its permission to use certain information at its sole discretion at any time and without explanation.
During the term of your business relationship with us, LEAN ON DIGITAL will maintain administrative, physical and technical safeguards designed for the protection and integrity of your information and LEAN ON DIGITAL’s information obtained through the use of the App.
LEAN ON DIGITAL may use Google Analytics or other similar tools to follow usage of the App and obtain statistical data.
If either your or we believe that there has been a disclosure of information in a manner not authorized under these Terms of relevant privacy policies, such party will promptly notify the other party. Additionally, you or we will reasonably assist each other in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
You are solely responsible for resolving disputes regarding ownership or access to your information, including those involving any current or former owners, co-owners, employees, your affiliates (former or current), or contractors of your business. You acknowledge and agree that LEAN ON DIGITAL has no obligation whatsoever to resolve or intervene in such disputes. LEAN ON DIGITAL shall be held harmless and indemnified in full (including for any associated costs) concerning any disputes with any third party (including App users or relevant government bodies of any applicable jurisdiction) arising out of or in connection with your breach of or non-compliance to this Article 10.
Article 11. Confidentiality
Neither you or we shall not disclose or use any confidential information of the other party except: (i) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to these Terms and the Package selected by you; (ii) with the other party’s prior written permission; or (iii) to the extent required by law or order of a court or other governmental authority or regulation. We and you agree to protect the other party’s confidential information in the same manner that it protects its own confidential information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) was or is received from a third party without breach of any obligation owed to the other party. For clarity, nothing in this Article 11 will restrict LEAN ON DIGITAL with respect to any data in ownership of LEAN ON DIGITAL or licensed to LEAN ON DIGITAL in accordance with Article 10 above.
For the purposes of this Article 11 “confidential information” means (i) any software utilized by LEAN ON DIGITAL in the provision of the App and its respective source code; (ii) each party’s business or technical information, including but not limited to the presented business model, documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, contractors and subcontractors, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (iii) any special pricing or other non-standard terms agreed to by you and us.
Obligation of confidentiality under this Article 11 shall remain in effect three (3) years after the business relationship between you and us cease to exist or as long as confidential information are not publicly available, whichever is longer.
Article 12. Validity of License
Fitness Partner shall maintain at all times its license to duly and validly act as a fitness coach. If additional licenses are required to conduct and/or provide certain Services (for example, nutrition related services), Fitness Partner shall at all times have valid license.
In case that any such license is revoked due to any reason, and that due to such event it is no longer available to provide Services or the App without possible legal hurdles, LEAN ON DIGITAL may suspend the use of the App until such license is obtained and valid. In case that valid license is not obtained for a prolonged period, LEAN ON DIGITAL may unilaterally terminate business relationship with Fitness Partner with immediate effect by providing written notice to Fitness Partner.
Article 13. Term, Termination and Suspension
Unless otherwise specified under the Package selected by you, the initial term of business cooperation under the Package selected by you and these Terms is since your selection of the Package and twelve (12) month after the App was delivered to Fitness Partner for use. The initial term automatically renews in successive and consecutive twelve (12) month periods until the business relationship is properly terminated. If you decide not to renew the term, you are obliged to notify us in writing not later than 15 days prior to expiration of the term.
LEAN ON DIGITAL may terminate the business relationship with you and these Terms and/or any subscription under the Package, effective immediately upon notice to you, if you are in material breach of the terms under the Package selected by you or these Terms and if such breach was not remedied by you in reasonable time after you were provided with a notice on such breach by LEAN ON DIGITAL (for avoidance of doubt, term “breach” wherever used in relation to Fitness Partner’s obligations is deemed to mean material breach). At its sole discretion, in any case, LEAN ON DIGITAL may provide you with additional time period to remedy such material breach and in case you do not comply with such request LEAN ON DIGITAL may terminate the business relationship with you and these Terms and/or any subscription under the Package, effective immediately upon notice to you. In the event of a termination pursuant to this Article, in addition to other amounts you may owe LEAN ON DIGITAL, you must immediately pay any unpaid LEAN ON DIGITAL’s fees associated with the Package you selected and/or any other amount you owe to LEAN ON DIGITAL. In no event will any termination relieve you of your obligation to pay any fees payable to LEAN ON DIGITAL for the period prior to the effective date of termination.
We may suspend or terminate your access to and use of the App (or any portion thereof) at any time without notice if we believe that any activity or use of App in connection with your account violates the terms of the Package you selected and these Terms, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to LEAN ON DIGITAL or any third party. We have the right to suspend or terminate the App at any time if we detect harmful or illegal activity under your account, or when we are required to do so by law. We have the right to suspend or terminate the App at any time if your activity (regardless of where it was undertaken) is damaging the image of LEAN ON DIGITAL.
We may terminate the business relationship with you in case we are not able to provide you with the App in timeframes designated under the Package selected by you due to reasons on your side, such as: (i) you are late with providing us with the necessary input (for example, design features, your trademark or logo, necessary content to adjust the App), (ii) you are requesting changes that significantly increase time and cost of LEAN ON DIGITAL to adjust the App, (iii) you are being uncooperative or act in a manner that prevents LEAN ON DIGITAL from adjusting the App. In any such case, prior to terminating the business relationship with you, LEAN ON DIGITAL will provide you with notice on such behavior and provide you with reasonable to time to remedy it. In case LEAN ON DIGITAL terminates the business relationship with you prior to adjusting the App, you will be obliged to cover all the costs LEAN ON DIGITAL has incurred in relation to adjusting the App until the moment of termination.
Upon termination or expiration of the business relationship with you and these Terms you will have no rights to continue use of the App and will cease accessing and/or using the App, and licenses provided to you be LEAN ON DIGITAL shall cease to be valid and will be deemed as revoked. LEAN ON DIGITAL will have no obligation to maintain your App account or to retain or forward any data to you or any third party, except as required by applicable law. LEAN ON DIGITAL will make your information available to you through LEAN ON DIGITAL’s standard web services within thirty (30) days following a notice of termination provided that you have paid LEAN ON DIGITAL all amounts owed.
Article 14. Representations, Warranties and Disclaimer
You agree to provide LEAN ON DIGITAL with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by LEAN ON DIGITAL . You are responsible for the accuracy and timely updating of such information, and you agree to promptly notify LEAN ON DIGITAL in writing if any of such information changes. You agree that LEAN ON DIGITAL has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate information.
LEAN ON DIGITAL warrants to you that during the term of the business relationship with you the App will perform materially in accordance with the functionality described in the documentation applicable to such App and that such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that LEAN ON DIGITAL will use commercially reasonable efforts to modify the applicable App to achieve the functionality described above. If LEAN ON DIGITAL is unable to restore such functionality within thirty (30) days, you may terminate the business relationship with us by providing written notice to LEAN ON DIGITAL, and you will be entitled to receive a pro-rata refund of any pre-paid fees. LEAN ON DIGITAL will have no obligation with respect to a warranty claim under this Article 14.2 unless notified by you in writing no later than twenty four (24) hours after the first instance of any material functionality problem. This warranty will only apply if the App have been utilized in accordance with the Package selected by you and these Terms and applicable laws. For clarity, this warranty will not apply to any free, trial or beta services.
Except as expressly provided in Article 14.2 above, to the maximum extent permitted by applicable law, LEAN ON DIGITAL makes no representations or warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including without limitation any warranties of title, non-infringement, merchantability or fitness for a particular purpose with respect to the App, other services and/or related documentation. LEAN ON DIGITAL does not warrant that your use of the App or other services will be secure, timely, error-free or uninterrupted, or that the they are or will remain updated, complete or correct, or that the App or other services will meet your requirements or that the systems that make the App or other services available (including without limitation the internet, other transmission networks, and your local network and equipment) will be uninterrupted or free from viruses or other harmful components. Except as provided in Article 14.2, the App and other services and any products and third party materials are provided on an “as is” and “as available” basis and solely for your use in accordance with these Terms and the Package selected by you. All disclaimers of any kind (including in this Article and elsewhere in these Terms and the Package selected by you) are made on behalf of both LEAN ON DIGITAL and its affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, contractors, licensors, suppliers and service providers (collectively referred to as “LEAN ON DIGITAL Affiliates”).
Article 15. Indemnification
You agree to indemnify, defend, and hold harmless LEAN ON DIGITAL and LEAN ON DIGITAL Affiliates from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (i) any actual or alleged breach by you, your affiliate or App users of any provisions of these Terms or the terms of the Package you selected; (ii) any access to or use of the App by you, your affiliate or App users; (iii) any actual or alleged violation by you, your affiliate or App users of the intellectual property, privacy or other rights of a third party; and (iv) any dispute between you and another party regarding ownership of or access to data in your ownership as provided in Article 10 above.
The previous also applies in case that you are promoting or selling any nutrition related services or products via App. In such case you will be obliged to inform the App users that LEAN ON DIGITAL cannot be held liable for consummation of any nutrition related services or products. You also agree to comply with all regulations relating to the health and safety of the App users and inform them on potential health and safety risks arising out of performing physical activity or consuming certain nutrition. Non-compliance with these provisions represents material breach of these Terms and the terms of the Package you selected.
Article 16. Limitations and Exclusions of Liability
To the maximum extent permitted by law, in no event will the LEAN ON DIGITAL or LEAN ON DIGITAL Affiliates aggregate liability, collectively, for all claims arising out of or related to the business relationship with you and these Terms, whether in contract, tort or otherwise, exceed the fees actually paid by you to LEAN ON DIGITAL during the three (3) month period immediately preceding the date of the incident or $5000.00 (USD), whichever is greater. All limitations of liability of any kind (including in this Article and elsewhere in the Package you selected and these Terms) apply with respect to both LEAN ON DIGITAL and the LEAN ON DIGITAL Affiliates.
In no event will LEAN ON DIGITAL or any LEAN ON DIGITAL Affiliates have any liability for any indirect, special, incidental, consequential or punitive damages, however caused, or for any personal injury or damage to the health, lost profits, loss of use, data or opportunities, cost of data reconstruction, cost or procurement of substitute goods or services, whether in contract, tort or otherwise, arising out of, or in any way connected with the App, other services provided by us or third party offerings, including but not limited to the use or inability to use the App or other services provided by us, any interruption, inaccuracy, error or omission, even if LEAN ON DIGITAL or LEAN ON DIGITAL Affiliates, its licensors or subcontractors have been previously advised of the possibility of such loss or damages. LEAN ON DIGITAL shall be indemnified in full by you and held harmless in case LEAN ON DIGITAL or LEAN ON DIGITAL Affiliates were obliged to pay damages (in any form whatsoever) and any associated costs.
The foregoing exclusions or limitations may not apply to the extent prohibited by applicable law.
Article 17. Refund
Refunds are only issued if required by law or prescribed by these Terms.
Article 18. Governing Law and Dispute Resolution
These Terms and the terms of the Package you selected will be governed by and interpreted in accordance with the internal laws of the State of Delaware without regard to conflicts of laws principles.
If you have any dispute with LEAN ON DIGITAL arising out of or relating to the business relationship with us or these Terms, you agree to notify LEAN ON DIGITAL in writing with a brief, written description of the dispute and your contact information, and LEAN ON DIGITAL will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If you and we are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either you or we may pursue resolution of the dispute in accordance with the arbitration agreement below.
All disputes arising out of or related to your business relationship with us and these Terms or any aspect of the relationship between you and LEAN ON DIGITAL, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that are not resolved pursuant to Article 18.2 above will be resolved through final and binding arbitration before one (1) neutral arbitrator instead of in a court by a judge or jury, and LEAN ON DIGITAL and you each hereby waive the right to trial by a jury. You agree that any arbitration under this arbitration agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures, as amended by these Terms. Any arbitration hearing will be held in the place of seat of LEAN ON DIGITAL. The applicable governing law will be as set forth in Article 18.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of these Terms and the terms of the Package you selected as the case may be and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms and the terms of the Package you selected, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
Article 19. Other Provisions
These Terms, together with the Package you selected and any terms and policies that are incorporated into these by reference, constitute the entire agreement and supersede any prior agreements between you and LEAN ON DIGITAL with respect to the subject matter hereof. The Package you selected and these Terms supersede and replace all prior and contemporaneous agreements, proposals or representations, written or oral, between LEAN ON DIGITAL, on the one hand, and you or your any affiliate, on the other hand.
No waiver of any provision of the terms of the Package you selected or these Terms by LEAN ON DIGITAL will be effective unless in writing and signed by LEAN ON DIGITAL. No waiver by either you or we of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the terms of the Package you selected and these Terms will remain in effect.
You may not assign, delegate or transfer your rights and obligations arising out of the business relationship with us and these Terms in whole or in part, without LEAN ON DIGITAL’s prior written consent. LEAN ON DIGITAL may assign, transfer or sublicense any or all of LEAN ON DIGITAL’s rights or obligations under the business relationship with you and these Terms without restriction.
Any notices provided by LEAN ON DIGITAL under the business relationship with you and these Terms may be delivered to you within the App or to the email address(es) we have on file for your account or provided by you. You hereby consent to receive notice from LEAN ON DIGITAL through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Terms, any notices to LEAN ON DIGITAL under the business relationship with us and these Terms must be delivered via first class registered U.S. mail, overnight courier, to LEAN ON DIGITAL, Inc., at the address of LEAN ON DIGITAL.
You or we will be not liable for any failure or delay in performance under the business relationship and these Terms for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving LEAN ON DIGITAL’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
You agree to the use of electronic communication in order to, as may be the case, enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the App. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
The terms of the Package you selected, and these Terms do not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and LEAN ON DIGITAL.
Article 20. Changes to the Terms
You acknowledge that these Terms may be unilaterally changed by LEAN ON DIGITAL provided that such changes do not apply retroactively to you and that you will be notified in advance prior to effective date of such changed. Changes to the Terms cannot amend any rights of the Fitness Partner established by the selected Package.
Article 21. Contact
You may direct any questions, complaints or claims with respect to the general functionality and operation of our services to LEAN ON DIGITAL at firstname.lastname@example.org.