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Terms and Conditions of Use

1. INTRODUCTION

1.1 Overview

These Terms and Conditions of Use („Terms“) cover the use of Fitness Ally. Fitness Ally is an application, ( "App") of Twenty Billion Neurons GmbH („20bn“, "we," "our," or "us"). The App is an AI-powered, visually enabled, and interactive virtual workout partner that guides you through bodyweight workouts and provides instant feedback on form along with proactive motivation. To access, use, or engage with our App or any of its services in any way ("Use," "Uses," or "Using"), you must accept and comply with these Terms. Please carefully read these Terms in their entirety before proceeding to Use our App or any of its services. These Terms apply to everyone who Uses our App or any of its services in any way, including, without limitation, by participating in any workouts offered through the App, or in any other way interacting with the App or any of its services ("User," "you," or "your"). The App is intended for and directed to residents of the European Union over the age of 18 years.

1.2 License

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the App as provided by us on your personal device solely in accordance with these Terms; and (ii) access and use any content, information and related materials that may be made available through the App or any of its services, in each case solely for your personal use. Any rights not expressly granted herein are reserved by us and our licensors.

1.3 Amendment of Terms

We strive to make our App and its services the best they can be, and we always try our best to respond to your feedback and requests for new features. When we do make changes to our App or any of its services, we will also sometimes make changes to these Terms, and accordingly, we reserve the right, in our sole discretion, to amend these Terms for any reason, at any time.

We will inform you of any changes to these Terms with 30 days notice prior to their effective date.

Your acceptance of any amendments to the Terms will be affirmed through your continued Use of the App or any of its services after this time. We shall inform you of the significance of your conduct in the notification regarding the amendments. If you do not agree with any part of the Terms or any amendments to the Terms, you may discontinue your Use of the App or any of its services at any time prior to the effective date of the amendments.

2. YOUR USE AND CONDUCT

2.1 Eligibility

You are eligible to Use our App or any of its services only if:

  • You are 18 years or older; and
  • You are healthy enough for physical activity.

We reserve the right to restrict, suspend, or terminate your Use of our App at any time, should you use the app despite your ineligibility.

2.3. Technical requirements

To Use the App, you have to download it from the Apple App Store. Additional terms & conditions of the Apple App Store may apply. Use of the App requires an Apple device with fully functional cameras running iOS or iPadOS with at the least the version specified in the App Page of the App Store as well as a sufficient internet connection. To Use the App, you have to grant access to certain functions of your mobile device.

2.3 Registration

To Use the App and any of its services, including the workouts offered through the App, you are required to register and create an account ("User Account"). You will need to select a username and a password ("User Login"). You are required to provide true, accurate, current, and complete information about yourself ("User Information") as prompted by the App registration form and maintain and promptly update this data to keep it true, accurate, current, and complete at all times. To create a User Account, you will be required to provide at least the following information:

  • Your age;
  • Your email address;
  • Your height and weight; and
  • Your location.

The user agreement is concluded when we confirm your registration.

You are solely responsible for maintaining the confidentiality of your User Account including your password and are fully responsible for all activities that occur under your User Account. You are obliged to:

  • Immediately notify us of any unauthorized use of your User Account or any other breach of security; and
  • Exit from your User Account at the end of each session.

20bn is not liable for any loss, damage, or any other liability that results or arises from your maintenance of your User Login and or unauthorized access to your User Account caused by any infringement of your obligations stated above. Should there be any dispute as to ownership of a User Account, 20bn is the sole arbiter of such a dispute and shall resolve it in our sole discretion and our decision will be final and binding on all parties involved.

2.4 Health and Safety Requirements

The App and its services constitute an AI-powered virtual workout partner that interacts with you on a camera-equipped device. Our App and its services are intended to benefit you by providing:

  • Encouragement and motivation to help you achieve your workout goals - it’s time to get up and get active;
  • The convenience to complete your workouts whenever you want, wherever you want; and
  • Affordability - no need for gym memberships to get tailored workouts and motivational feedback from your workout buddy.

There are inherent risks associated with participating in physical activity through your Use of the App, which may result in personal injury to you or those around you.

Use of the App is only permitted if you have been assessed as fit and healthy by a general practitioner prior to engaging in any workouts, exercises, or any other physical activity through the App or any of its services. The App is provided by 20bn under the following conditions:

  • The App and its services are not a replacement for a personal trainer, healthcare provider, or similar person, individual, or advisor, and do not provide any form of injury prevention or analysis, or preventative or diagnostic services;
  • The App shall encourage and motivate to boost your workout. You remain responsible to not exceed healthy levels of exertion. The App does not supervise or monitor such levels.
  • You are responsible for your own personal safety and the safety of those around you. While the App or its services may at times prompt you to exercise or offer suggestions on your form during a workout, you are always responsible for ensuring that any workouts, actions, and movements you undertake while Using the App are safe;
  • You must perform the workouts offered through the App in a safe environment with adequate space around you to protect yourself and those around you;
  • If, at any time during your Use of the App or any of its services, you experience discomfort, pain, shortness of breath, nausea, or dizziness, discontinue your Use of the App immediately and seek medical attention;
  • You are solely responsible for all results of your actions from your Use of the App or any of its services,
  • We do not offer any medical coverage for bodily harm or injury that may result from providing or participating in workouts or other physical activity through the App or any of its services;

2.5 User Content

Our App may at times allow you to upload, post, or otherwise transmit content ("User Content"). Any such User Content may be managed by a moderator or moderators (the "Moderator(s)") designated by us.

The following moderation guidelines ("Guidelines") shall be used by the Moderator(s) to determine if any User Content is in violation of these Terms. If the Moderator(s) determine, in their sole and absolute discretion, that any User Content is deemed to be Inappropriate Content (as defined below), then the Moderator(s) have the right to:

  • Request you modify or edit your User Content in order to ensure your compliance with these Terms, or for any other reason;
  • Remove or delete any User Content; and/or
  • Suspend or revoke your privileges without notice or explanation, including as it relates to your User Account.

All User Content, whether publicly posted or privately transmitted when sending, submitting, posting, or displaying material through the App, is primarily your responsibility. This means that you, are entirely responsible for:

  • All User Content that you upload, post, email, transmit, or otherwise make available through the App or any of its services; and
  • Ensuring that all User Content is accurate, does not breach privacy or anti-spam laws and does not include misleading information and in no way infringes or violates anyone’s proprietary or intellectual property rights.

We do not control the User Content posted through the App or any of its services, notwithstanding the rights and activities of the Moderator(s), and, as such, we do not guarantee the accuracy, integrity or quality of any User Content. 20bn is not responsible or liable for any inaccuracies, errors, or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of or reliance upon any User Content posted, e-mailed, transmitted or otherwise made available through the App.

We do not pre-screen User Content, but we have the right (but not the obligation) to refuse or remove any User Content that is available through the App or any of its services that violates these Terms or is otherwise objectionable in our sole and absolute discretion. 20bn is entitled to access, preserve, and disclose your User Information, User Account, and/or User Content if required to do so by law or if in good faith we believe that such access, preservation or disclosure is reasonably necessary to:

  • Comply with legal process;
  • Enforce these Terms;
  • Respond to claims that any User Content violates the rights of third parties;
  • Respond to your requests for customer services; or
  • Protect the rights, property, or personal safety or security of us, our affiliates, our Users, and the public.

User Content may be considered, in the sole and absolute discretion of the Moderator(s), as inappropriate (the "Inappropriate Content") if it contains, depicts, includes, discusses, or involves, without limitation, any content that is deemed by the Moderator(s), in their sole and absolute discretion, to:

  • Be defamatory, libelous (e.g., a statement or comment about a person or organization that cannot be proved to be true and may be considered damaging to their reputation), pornographic or obscene;
  • Contain:
    • Nudity;
    • The promotion of any alcohol/drug consumption or smoking;
    • Explicit or graphic sexual activity;
    • Crude, vulgar, or offensive language and/or symbols;
    • Derogatory characterizations of any ethnic, racial, sexual, religious or other groups;
    • Content that endorses, condones and/or discusses any illegal, inappropriate or risky behaviour or conduct;
    • Personal information of any individual without their consent, including, without limitation, names, telephone numbers, and addresses; and/or
    • Any identifiable third-party products, intellectual property, or proprietary information, or any materials that infringe or might infringe the intellectual property rights, privacy rights, rights of publicity, or other proprietary rights of others, except where permitted by such other party or parties;
  • Be a personal attack on another User;
  • Be spam;
  • Be content designed to intentionally provoke arguments;
  • Cause damage to or disable the App or any of its services or interfere with any other Users’ rights or enjoyment of the App; and/or
  • Violate any applicable laws, regulations, or similar government-imposed restriction or rule.

2.6 External Links

The App, any of its services, and/or User Content may include or provide links to other third-party websites or content. We have no control over such third party’s websites and resources. 20bn is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any User Content, advertising, products, or other materials on or available from such websites or resources. 20bn is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such User Content, goods or advertising, products, or other materials on or available from such websites or resources.

2.7 User Conduct

It is prohibited to use the App or any of its services to:

  • Violate any laws or third-party rights;
  • Impersonate any person or entity, including, but not limited to, 20bn, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • Transfer your account to another person without our prior consent;
  • Make the App or any of its services available to any third party or try to sell access to the App for money or anything else of value;
  • Access the App or any of its services in order to build a similar or competitive product or service;
  • Distribute viruses or any other technologies that may harm us, our affiliates, our or our affiliates’ websites and applications, or the interests or property of our Users or our affiliates’ Users’;
  • Copy, modify, or distribute content from our App or any of its services or any of our intellectual property; or
  • Harvest or otherwise collect, use or disclose personal information about Users, including email addresses, without their prior consent or without complying with applicable data protection and privacy laws.

Additionally, you are prohibited from:

  • Taking any action that imposes or may impose (in our sole and absolute discretion) an unreasonable or disproportionately large load on our infrastructure;
  • Accessing, downloading or otherwise collecting content or other data from or via the App, except through the proper use of the App as intended by us and in accordance with the letter and spirit of these Terms.
  • Copying, reproducing, modifying, creating derivative works from, distribute or publicly display any content (except for your information) from our App without the prior express written permission of us and the appropriate third-party, as applicable;
  • Interfering or attempt to interfere with the proper working of our App or any activities conducted on our App; or
  • Forging headers or otherwise manipulate identifiers in order to disguise the origin of any User Content posted or transmitted through the App.

2.8 Term

These Terms shall remain in force for as long as the user agreement is not terminated in any way or until these Terms are amended and/or replaced by new terms or Your Use is terminated in accordance with section 1.8.

2.9 Termination of Use

Without limiting other remedies, we may in our sole and absolute discretion and without cause or notice, limit, suspend, or terminate your access to our App and it services and your User Account, prohibit access to our App, and/or take technical and legal steps to keep you off our App, and/or remove and discard any User Content on the App, in case of improper use or violation of these Terms, including, without limitation:

  • If we believe that you have violated or acted inconsistently with the letter or spirit of these Terms;
  • If a request is received from law enforcement or other government agencies;
  • If you provide us with any User Information that is untrue, inaccurate, not current, or if we have reasonable grounds to suspect that you have done so;
  • A request by you;
  • Discontinuance or material modification to the App (or any part thereof);
  • Unexpected technical or security issues or problems;
  • In compliance with legal process;
  • If you have or we believe you have engaged in illegal activities, including, but not limited to, fraud; and/or
  • Non-compliance with applicable data protection and privacy laws.

Any termination of your access to the App or any of its services under the provisions of these Terms may be executed without prior notice. We may immediately deactivate or delete your User Account. In addition, we shall delete all related User Content in accordance with the applicable data protection laws.

3. INTELLECTUAL PROPERTY

As a User of the App, you are helping us develop an intuitive, user-friendly, and useful application. We want to hear your feedback on the App, and your ideas are important to us.

When you send, submit, post, or display any User Content such as feedback, survey answers, etc. through our App or any of its services, you assign us any and all non-exclusive license in all intellectual property rights that you hold or may hold in that content and, where not assignable, waive any moral rights you may have for that content. You further assign us full rights to and ownership of any intellectual property or proprietary information, method, system, business model, or any other development that we generate as a result, in whole or in part, of your feedback, survey answer, or other User Content, and may take all steps afforded by law to exclude you from using or appropriating any such property or information. You will promptly execute any documents and take further actions as may be necessary to give full ownership to 20bn of all legal right, title and interest in and to the App and its services, including any intellectual property rights which subsist in the App (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Nothing in these Terms gives you a right to these rights or to use any of our trade names, trademarks, service marks, logos, domain names and other distinctive brand features.

4. DURATION, REMUNERATION & TERMINATION

All User Accounts are concluded for an indefinite period. A basic Account is provided free of charge and can be terminated at any time by both parties. The user can terminate the User Account by deleting it in the settings of the app. Simply deleting the App itself does not constitute a termination of your User Account.

Fee-based premium accounts are charged in advance on a monthly basis. Those accounts can be terminated with a 14-day notice at the end of the month by both parties. The termination can be executed by deleting the User Account in the settings of the App or by notice to support@fitnessallyapp.com. Conclusion of a premium account is facilitated via in-app purchases and requires acceptance of the Apple App Store terms and conditions.

Prices are determined by the actual offer. Unless specifically stated otherwise, all prices include value added tax.

The right to terminate the user agreement for good cause remains unaffected.

5. RIGHT TO WITHDRAWAL

In case of a Premium Account you have the following right to withdrawal. This does not apply if you have waived your right to withdrawal by expressly consenting to 20bn to begin with the performance of the contract prior to expiry of the withdrawal period.

Right of Withdrawal

You have the right to cancel this contract within fourteen days without reason. The withdrawal period is fourteen days from the date of conclusion of the contract. In order to exercise the right of withdrawal, the user must inform 20bn of the decision to withdraw this contract by means of a clear statement (e.g. by letter, fax or email). You may use the standard withdrawal form, which is not mandatory. You may fill out and submit the standard withdrawal form or other clear statement to the following address: [mail-address]. If you make use of this option, 20bn will immediately send an email confirming receipt of such a withdrawal. To comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the end of the withdrawal period.

Consequences of Withdrawal

If you cancel this Agreement, 20bn shall promptly refund to you all payments received from you, including delivery charges (except for additional charges resulting from your choice of a different delivery method than the cheapest standard delivery offered by 20bn), without undue delay and in any event no later than fourteen days from the date 20bn received notice of your withdrawal of this Agreement. For this refund, 20bn will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no event will 20bn charge the user for this refund.

Standard withdrawal form

(If you want to withdraw from the contract, please fill out this form and send it back).

- To:

Twenty Billion Neurons GmbH
Chausseestraße 17
10115 Berlin
Germany
Mail:

- I/we (*) hereby withdraw from the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)

- Ordered on (*)/received on (*)

- Name of the consumer(s)

- Address of the consumer(s)

- Signature of the consumer(s) (only in case of communication on paper)

- Date

(*) Delete as applicable


6. PRIVACY

We use your information only as described in our Privacy Policy located at [Address]. If you object to your personal information being transferred or used in the way referred to in our Privacy Policy, please do not use our App or any of its services.

7. INDEMNITY

You are obliged to defend, indemnify, and hold harmless Twenty Billion Neurons GmbH, our affiliates and licensors (and our officers, directors, agents, subsidiaries, joint ventures, partners and employees), from any and all damage (whether direct, indirect, incidental, consequential, or otherwise), loss, liability, cost, expense (including reasonable legal fees), resulting from any threatened claim, claim, demand, suit, proceeding (whether before an arbitrator, court, mediator, or otherwise or leading up to such forum), investigation, or demand made by any third-party due to or arising out of your breach or violation of these Terms, of any User Content which you submit, post, transmit or make available through the App, your use of the App or any of its services, your connection to the App, or your violation of any rights of another or your violation of any law or the rights of a third-party. This does not apply if you are not responsible for the breach or violation.

8. LIMITATIONS OF LIABILITY

The following regulations on liability and warranty of provider apply to all claims for damages, defects or replacement claims of the User arising from or in connection with the use of the App and its services regardless of their legal base (e.g. warranty, default, impossibility, breach of duty, existence of an obstacle to performance, unlawful act etc.), but not to claims of the User

  • for damages resulting from injury to life, limb and health,
  • in the event of fraudulent concealment of a defect by us or due to the absence of a quality for which we have assumed a guarantee,
  • which are based on intentional or grossly negligent conduct of us or our legal representatives,
  • in accordance with the German Product Liability Act or
  • which are covered by § 44 or § 44a TKG.

To the aforementioned exceptions the statutory regulations remain applicable.

The use of the App in its „Basic“ version is permitted free of charge. To that extent, the application of the lending law is agreed, analogously if not directly applicable: We are only responsible for intent and gross negligence. The liability for defects is limited to cases where we fraudulently conceal a legal defect or a defect in the App or its services; in this case we are liable to compensate the User for any damage arising from this. We are not liable for ordinary or simple negligence. We do not assume any duties of conduct towards the User, for the negligent violation of which we may be liable.

We are liable for gross negligence causing damage by vicarious agents limited to the compensation of the typical damage foreseeable for us at the time of conclusion of the contract.

The liability without fault of us - if tenancy law applies - for defects that already existed when the agreement was concluded is expressly precluded.

We are not responsible for disruptions of services due to force majeure (in particular: strikes, lockouts, instructions by public bodies, natural disasters, failure of communication networks or gateways, disruptions in the services of carriers).

For third-party components, the liability regulations of the respective license shall apply with priority and conclusively. If these regulations do not apply, this section shall apply subordinately.

9. GENERAL

9.1 No Agency

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

9.2 Place of Performance

The place of performance for all obligations arising from the legal relationship between the parties is the registered office of us.

9.3 Law and Forum for Disputes

The laws of Federal Republic of Germany shall apply to the interpretation of these Terms with exception to any conflict of law provisions. The terms of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Convention) do not apply. The User can assert claims from consumer-protecting standards according to German law or according to the law of the EU member state in which the User lives.

All disputes arising from and in connection with the contract shall be decided by the national courts responsible for the registered office of Us. This only applies

  • (i) if the User does not have a general place of jurisdiction in Germany,
  • (ii) the User’s place of residence or habitual abode has been transferred abroad after the conclusion of the contract; or
  • (iii) is unknown at the time the action is brought
  • (iv) the User is an entrepreneur within the meaning of § 14 BGB (German Civil Code).

However, we remain entitled to sue at the User’s general legal venue. Notwithstanding the above, we shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any competent jurisdiction.

9.4 Effective Date

These Terms are dated Mar 30 28 2020 ("Effective Date"). No changes to these Terms by you are valid or have any effect unless agreed by us in writing. We reserve the right to vary these terms and conditions from time to time.

9.5. No Waiver

No waiver of any terms of these Terms shall be deemed a further or continuing waiver of such term or any other term. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

9.6 Entire Agreement

These Terms (together with the Privacy Statement referred to in section 4 of this Agreement) contain the entire understanding and agreement between us and you in relation to your use of the App and any of its services and supersede and replace any representation, statement or other communication (whether written or otherwise) made by you or us which is not contained herein. Save for fraud or fraudulent misrepresentation, we shall have no liability for any such representation being untrue or misleading.

9.7 Survival

All provisions of these Terms that by their nature should survive termination of your right to use the services of the App shall survive, including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranty, and intellectual property protections and licenses.

9.8 Assignment

You may not assign, sublicense or otherwise transfer any of your rights and obligations in these Terms to any other person.

last updated on June 19, 2020