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Fitness Cubed – Terms of Use

  1. Acceptance of the Terms of Use

    These terms of use (“Terms”) govern your use of www.cubii.com and any associated pages or sub-domains (collectively, the “Website”) and any services provided by Fitness Cubed in connection with any associated mobile application (the “App”) or the foregoing (together with the Website, the “Services”). The Services are owned or controlled by Fitness Cubed Inc. (“Fitness Cubed” or “we”). These Terms affect your legal rights and obligations. By accessing or using the Services, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms and our Privacy Policy, located at www.cubii.com/privacy. If you do not agree to be bound by all of these Terms or our Privacy Policy, do not access or use the services.

    You may use the Services only if you can form a binding contract with Fitness Cubed, and only in compliance with these Terms and applicable laws. If you open an account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.

  2. Changes to the Terms of Use

    We may revise these Terms from time-to-time in our sole discretion, and the most current version will always be posted on our website at www.cubii.com/terms. If, in our sole discretion, we deem a revision to be material, we will notify you. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, you must stop using the Services.

  3. Fitness Cubed Services

    Fitness Cubed provides an internet-based service that connects users who want to track and monitor their exercise using Fitness Cubed products. Additionally, Fitness Cubed provides marketing and sales information about Fitness Cubed and its products, offers these products for sale in an ecommerce environment and an online platform that allows users to access studio quality live and on-demand video classes for strength, cardio, and low impact workouts using our products. These Terms apply generally to all types of users, except where a single user type is specifically referenced.

  4. Accessing the Website and Account Security

    We reserve the right to withdraw or amend the Services at any time, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict or block access to the Services.

    To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current and complete. You agree that all information you provide to register with this Website or otherwise, including but not limited to through the use of any interactive or messaging features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. We will not be responsible for any losses that result from your failure to provide correct and current information, which may include, but is not limited to, any losses related to lost or undeliverable items.

    If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information. You will be responsible for all activity associated with your account, including any fees incurred or conduct which violates our Content Standards or Copyright Policy included herein. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.

    We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any of these Terms.

  5. Trademarks

    Fitness Cubed’s name and all related names, logos, product and service names, designs and slogans (including but not limited to Cubii) are trademarks of Fitness Cubed or its affiliates or licensors. You may not use such marks without the prior written permission of Fitness Cubed. All other names, logos, product and service names, designs and slogans on this Website and the App are the trademarks of their respective owners.

  6. Prohibited Uses

    You may use the Services only for lawful purposes and in accordance with these Terms. In connection with your use of the Services, you agree not to:

    • Violate any applicable federal, state, local or international law or regulation.
    • Send unsolicited or misleading messages, or otherwise use the Services to send messages.
    • Exploit, harm, or collect the personal information of minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
    • Impersonate or attempt to impersonate Fitness Cubed, a Fitness Cubed employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
    • Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Fitness Cubed or users of the Services or expose them to liability.
    • Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Website.
    • Use any robot, spider or other automatic device, process or means to access the Services for any purpose without the express permission of Fitness Cubed, including monitoring or copying any of the material on the Website.
    • Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without the express permission of Fitness Cubed.
    • Use any device, software or routine that interferes with the proper working of the Services.
    • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
    • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer or database connected to the Services.
    • Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
    • Otherwise attempt to interfere with the proper working of the Services.
  7. User Contributions

    The Services may contain user profiles, content boards, forums, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to the Studio+ Services and other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Services.

    All User Contributions must comply with the Content Standards set out in the Content Standards & Copyright Policy in these Terms.

    Any User Contribution you post to the site will be considered public, non-confidential and non-proprietary. By providing any User Contribution on the Services, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

    You represent and warrant that:

    • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
    • All of your User Contributions do and will comply with the Content Standards & Copyright Policy.
    • You understand and acknowledge that you, not the Company, have full responsibility, including its legality, reliability, accuracy, and appropriateness, for any User Contributions you submit or contribute. We are not responsible or liable to any other user or third party for the content or accuracy of any User Contributions posted by you or any other user of the Services.

    Monitoring and Enforcement; Termination

    We have the right to:

    • Remove or refuse to post any User Contributions or Third Party Materials for any or no reason in our sole discretion.
    • Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Agreements, including these Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for the Company or its service providers.
    • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
    • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
    • Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of the Agreements.

    Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities, legal proceeding or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

    However, we cannot and do not undertake to review all User Contributions or Third Party Materials before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding User Contributions and related transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

  8. Content Standards & Copyright Policy

    The following policies explain our content standards for all User Contributions and use of any of the Interactive Services (the “Content Standards”), as well as our copyright policy (the “Copyright Policy”) and reporting policy. We may rely on third party guidance to examine potentially inappropriate User Contributions, however, we reserve the right to remove any User Contributions for any reason, at any time. By accessing the Platform or using the Services, you agree to these Content Standards & Copyright Policy. These Content Standards & Copyright Policy may change from time to time. Your continued use of the Platform or Services after we make changes is deemed to be acceptance of those changes, so please check the Content Standards & Copyright Policy periodically for updates.

    Content Standards

    These Content Standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

    • Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
    • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
    • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
    • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with the Agreements.
    • Be likely to deceive any person.
    • Promote any illegal activity, or advocate, promote, or assist any unlawful act.
    • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
    • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
    • Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
    • Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

    Copyright Infringement

    We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Platform infringe your copyright, you may request removal of those materials (or access thereto) from the Platform by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

    • Your physical or electronic signature;
    • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works;
    • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
    • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address);
    • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
    • A statement that the information in the written notice is accurate; and
    • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

    Our designated Copyright Agent to receive DMCA Notices is:
    Copyright Agent: Copyright Manager
    Phone: 1 844 282 4401
    Email: copyright@mycubii.com

    It is our policy, in appropriate circumstances, to disable and/or terminate the accounts of users who are repeat infringers.

    Other Intellectual Property Concerns

    While we do not actively monitor the User Contributions for trademark or other intellectual property violations, we take claims of intellectual property violations seriously. If you believe any User Contributions or materials accessible on or from the Platform infringe your intellectual property rights, you may request removal of those materials or User Contributions (or access thereto) from the Platform by submitting written notification to us at copyright@mycubii.com.

  9. Reliance & Third Party Materials.

    The information presented on or through the Services is made available solely for general information purposes and should not be considered medical advice or a diagnosis. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.

    This Services includes content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or service providers (the “Third Party Materials”). All statements and/or opinions expressed in these Third Party Materials, and all related articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those Third Party Materials and may not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any Third Party Materials provided by any third parties.

  10. Disclaimer of Warranties

    You understand that we cannot and do not guarantee or warrant that the files available for downloading from the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES, OR ON ANY WEBSITE LINKED TO THE SERVICES.

    YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NEITHER FITNESS CUBED NOR ANY PERSON ASSOCIATED WITH FITNESS CUBED MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER FITNESS CUBED NOR ANYONE ASSOCIATED WITH FITNESS CUBED REPRESENTS OR WARRANTS THAT THE WEBSITE, THE SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

    FITNESS CUBED HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

  11. Limitation on Liability

    IN NO EVENT WILL THE COLLECTIVE LIABILITY OF FITNESS CUBED, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, MANAGERS, OFFICERS OR DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED $100. IN NO EVENT WILL FITNESS CUBED, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, MANAGERS, OFFICERS OR DIRECTORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.

  12. Exclusions and Limitations

    Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 8. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 8 specifically do apply to you.

  13. Indemnification

    You agree to defend, indemnify and hold harmless Fitness Cubed, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Services, including, but not limited to services and products other than as expressly authorized in these Terms or your use of any information obtained from the Services. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

  14. Governing Law and Jurisdiction

    All matters relating to the Services and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction).

    Any legal suit, action or proceeding arising out of, or related to, these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois, in each case located in the City of Chicago and County of Cook. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

  15. Limitation on Time to File Claims

    ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  16. Waiver and Severability

    No waiver of by Fitness Cubed of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Fitness Cubed to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

    If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

  17. Miscellaneous

    These Terms and our Privacy Policy constitute the sole and entire agreement between you and Fitness Cubed with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services, except to the extent such terms are contained in a written contract between Fitness Cubed and a Service Provider. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Fitness Cubed without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Fitness Cubed. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.

  18. Force Majeure

    Under no circumstances shall Fitness Cubed or its suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.

  19. Statute of Limitations

    Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

  20. Third Party Beneficiaries

    You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.

  21. Notices

    We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) 350 W Ontario St Suite 4, Chicago, IL 60654; or (2) support@mycubii.com.

  22. Your Comments and Concerns

    All feedback, comments, requests for technical support and other communications relating to the Website should be directed to support@mycubii.com.