Terms and Conditions of Use
Please note: Additional terms and Information specific to your place of residency may apply and can be found at the bottom of the document.
These terms and conditions of use (“Terms”) constitute a legal agreement between you (“User,” “you,” and “your”) and Twenty Billion Neurons Inc. (“20bn,” “we,” “our,” or “us”) governing your use of or access to Fitness Ally, an application owned and operated by 20bn, and its services (collectively, the “App”). By checking “I Accept”, you agree and indicate your consent to be bound by these Terms.
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 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.
For greater clarity, these Terms apply to everyone who Uses our App in any way, including, without limitation, by participating in any workouts offered through the App, or in any other way interacting with the App. Where you provide access to the App to your friends, family, or anyone else so that they can Use the App, you agree to bring these Terms to their attention prior to their Use of the App and to only provide them access to Use the App if they agree with these Terms.
The App is intended for and directed to residents of countries or jurisdictions where the App is made available by 20bn from time to time at our sole discretion. By accepting these Terms, your represent and warrant that you are the legal age of majority under applicable law to form a binding contract with 20bn. You may permit individuals who are not the legal age of majority to Use the App under your supervision or the supervision of another adult, and may accept these Terms on their behalf, where you are their legal guardian or parent.
The App is for your personal and non-commercial Use only. You agree that you will only Use the App for lawful purposes and in accordance with these Terms. Subject to and conditioned upon your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) 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 on, through, or as a result of the App, 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 are always excited to respond to your feedback and requests for new features. When we make changes to our App, we may also 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. Any and all such amendments will be effective from the date they are published and will apply to all Use of the App thereafter.
We will inform you of any changes to these Terms in advance of such changes coming into effect and in accordance with any applicable legal requirements. Your acceptance of any amendments to the Terms will be affirmed through your continued Use of the App after such amendments come into force. No changes to these Terms are valid or have any effect unless agreed to by 20bn in writing.
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.
2. YOUR USE AND CONDUCT
You are eligible to Use our App or any of its services only if:
- you are 18 years or older, or are supervised by an individual who is 18 years or older; and
- you have been assessed as fit and healthy by a general practitioner or other medical professional and you are healthy enough for physical activity.
By Using the App, you represent and warrant that you meet the above eligibility requirements. We reserve the right to restrict, suspend, or terminate your Use of our App at any time, including without limitation where you Use the App despite your ineligibility.
2.2. Technical requirements
To Use the App, you may have to download it from the Apple App Store and to do so, you may be required to accept additional terms and conditions of the Apple App Store.
Use of the App may require and be functionally limited to certain devices on which the App is made available by 20bn and which have a fully functional video-enabled camera. Functionality of the App may also be limited if you are not Using at the least the version of the App specified in the Apple App Store or other applicable application marketplace, if you are Using the App via an insufficient internet connection, or if you have not granted the App permissions to certain functions of your mobile device.
You must comply and hereby agree to comply with any and all applicable third-party terms of agreement when Using the App.
To Use the App, including without limitation 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") to create a User Account. You acknowledge that you are required to and hereby agree to provide true, accurate, current, and complete information about yourself ("User Information") as required by 20bn from time to time and as prompted by the App registration form, and to maintain and promptly update such User Information 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.
You acknowledge and agree that you are solely responsible for maintaining the confidentiality of your User Account, including without limitation your User Login, and are fully responsible for all activities that occur on your User Account. You agree 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. You agree that, 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 is an AI-powered virtual workout partner that interacts with you through a camera-equipped device. The App is intended to augment your exercise experience and may 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.
You acknowledge that 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. You acknowledge and agree that you are responsible for your health and safety, and the health and safety of those around you, at all times while Using the App.
Use of the App is only permitted if you have been assessed as fit and healthy by a general practitioner or other medical professional prior to engaging in any workouts, exercises, or any other physical activity through the App. By Using the App you acknowledge and agree that:
- the App is not a replacement for a personal trainer, healthcare provider, or similar person, individual, or advisor, and does not provide any form of injury prevention or analysis, or any other preventative or diagnostic services;
- while the App can help encourage and motivate you to boost your workout, you remain responsible for your health and safety and should exercise caution and independent judgment to not exceed healthy levels of exertion. The App does not supervise, monitor, or provide feedback on such levels. IF, AT ANY TIME DURING YOUR USE OF THE APP, YOU EXPERIENCE DISCOMFORT, PAIN, SHORTNESS OF BREATH, NAUSEA, OR DIZZINESS, DISCONTINUE YOUR USE OF THE APP IMMEDIATELY AND SEEK MEDICAL ATTENTION;
- you are responsible for your actions, your own personal safety, and the safety of those around you when you are Using the App. While the App may at times prompt you to exercise or offer suggestions on your form during a workout, you always remain entirely responsible for ensuring that any workouts, actions, and movements you undertake while Using the App are safe for you and those around you;
- you will only perform the workouts offered through the App in a safe environment with adequate space around you to protect yourself and those around you; and
- we do not offer any medical coverage for bodily harm or injury that may result to you or any other individuals from us providing or you participating in workouts or other physical activity through the App.
2.5 User Content
You may be able to submit, post, publish, display, or otherwise transmit content, material, or information on or through the App or to other users or person on, through, or using the App ("User Content"). You are entirely responsible for all User Content you submit, post, publish, display, or otherwise transmit on or through the App, including 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.. 20bn is not responsible or legally liable to any third party for the content or accuracy of any User Content submitted, posted, published, displayed, or otherwise transmitted on or through the App by you or any other user of the App. Any and all User Content must comply with all applicable laws, regulations, and these Terms.
User Content may be removed, hidden, edited, or otherwise altered at our sole discretion for any or no reason, with or without notice, and at any time. We may also suspend or terminate your User Account in accordance with these Terms. However, we have no obligation, nor any responsibility to any party to monitor the App or its Use, and do not and cannot undertake to review User Content. We cannot ensure prompt removal of objectionable material, including User Content, and we have no liability for any action or inaction regarding transmissions, communications, or content, including User Content, provided by any user of the App or third-party, subject to applicable laws.
Our discretion will be informed, but not limited by, the following guidelines for inappropriate User Content. User Content may be deemed inappropriate by us if it contains, depicts, includes, discusses, encourages, or involves, without limitation:
- material or conduct that is illegal, exploitative, obscene, harmful, threatening, abusive, harassing, hateful, defamatory, libelous, sexually explicit or pornographic, violent, inflammatory, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, age, or other such legally prohibited ground;
- any false, inaccurate, or misleading information, or the impersonation or attempted impersonation of 20bn, an employee of 20bn, another user of the App, or any other person or entity;
- conduct that restricts or inhibits anyone’s use or enjoyment of the App, or which, as determined by us in our sole discretion, may harm us or users of the App, or expose either to liability;
- cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, or alarm any other person;
- material or conduct that is otherwise objectionable, as determined by us at our sole discretion; 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.
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, users of the App, and the public.
By submitting, posting, publishing, displaying, or otherwise transmitting any User Content on or through the App, you agree to grant us, our successors, and assigns, and our affiliates and service providers as necessary, a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, perform, display, distribute, copy, and otherwise disclose for any purpose any User Content you submit, post, publish, display, or otherwise transmit on or through the App. You waive all moral rights in any such User Content.
2.6 External Links
The App 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
As a condition of your Use of the App, you warrant and agree that you will not Use the App to:
- violate or promote the violation of any government-imposed restriction or rule or of third-party’s rights;
- impersonate any person or entity, including but not limited to 20bn, falsely state or otherwise misrepresent your affiliation with a person or entity, or do any other thing or act that brings us, any other user of the App, or any third-party into disrepute or causes liability for us;
- make the App or any of its services available to any third party, try to sell access to the App for money or anything else of value, or access the App in order to build a similar or competitive product or service;
- distribute viruses, malware, or any other technologies that are malicious or that may harm us, the App, other users of the App, our affiliates, or any third-party, or in any other way interfere or attempt to interfere with the proper working of the App, including without limitation by taking any action that imposes or may impose (in our sole and absolute discretion) an unreasonable or disproportionately large load on our infrastructure;
- reverse engineer, decompile, copy, modify, distribute, transmit, license, sublicense, display, revise, perform, transfer, sell, or otherwise make available to any third-party, or otherwise publish, deeplink, create derivative works from or exploit in any way the App or any content from the App or any of our intellectual property except as permitted by us under these Terms or in writing; or
- harvest or otherwise collect, use or disclose content on the App or personal information about Users, including email addresses, for any purpose without first obtaining the appropriate consents and complying with applicable data protection and privacy laws.
You further represent and warrant with respect to your User Account that:
- all the information you provide on or through the App is correct, current, and complete;
- your User Login will be treated as confidential by you and will not be disclosed to any other person or entity;
- you will notify us immediately of any unauthorized access to or use of your User Login, User Account, or any other breach of security; and
- you will not transfer your User Account to another person without the prior written consent of the Company.
These Terms shall remain in force in perpetuity or until these Terms are amended, replaced, or terminated in accordance with the terms hereof.
2.9 Termination of Use
We may in our sole discretion for any or no reason, with or without notice, and at any time:
- terminate these Terms;
- limit, suspend, or terminate your User of the App;
- take technical and legal steps to prevent you from Using the App; or
- remove or otherwise modify any User Content.
Any such termination or action by us shall be without prejudice and in addition to such rights and remedies as may be available to us, including injunction and equitable remedies. Any terms of these Terms that are necessary to give effect to our rights under these Terms or that contemplate survival beyond termination shall survive, except to the extent not permitted by law.
3. INTELLECTUAL PROPERTY
The App and all the content of the App (including without limitation all information, reports, data, databases, graphics, interfaces, pages, text, files, software, code, product names, company names, trademarks, logos, trade names, any other intellectual property contained on the App but excluding User Content), the manner in which such content is presented or appears and all information relating thereto, and the App’s features and functionality (collectively, the “App IP”) are owned by 20bn, our licensors, or other providers of such App IP, and are protected in all forms by intellectual property laws, including without limitation copyright, trademark, patent, trade secret, industrial design, and any other proprietary rights.
We grant you a personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access and read the App IP.
You agree that, except as explicitly authorized by us, you will not:
- distribute the App IP for any purpose, including without limitation by compiling an internal database, or by redistributing or reproducing the App IP by the press or media or through any commercial network, cable, or satellite system;
- create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, distribute, publish or republish, download, store, arrange, modify, copy, bundle, sell, sub-license, export, merge, transfer, loan, rent, lease, assign, share, outsource, host, make available to any person or otherwise use, either directly or indirectly, the App IP in whole or in part, in any form or by any means whatsoever, be they physical, electronic, or otherwise; or
- allow any third-party to access the App IP.
We want to hear your feedback and your ideas are important to us. As a user of the App, your feedback can help us develop an intuitive, user-friendly, and useful application. If you send or transmit any communications or materials to us on or through the App or by mail, email, telephone, or otherwise, suggesting or recommending changes to the App, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to us all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback. You agree to promptly execute any documents and take further actions as may be necessary to effect such assignment.
4. DURATION, REMUNERATION & TERMINATION
4.1 Trial and Premium Accounts
Upon your installation of the App, you may activate a trial User Account (“Trial Account”), which is provided free of charge for 7 calendar days (“Trial Period”), or longer at our sole discretion, subject to the terms set out below, after which your Trial Account expires. At our sole discretion, your Trial Account may be feature-limited. Your Trial Account can be terminated at any time and for any reason by either party. You can terminate your Trial Account by providing notice to 20bn at firstname.lastname@example.org. Simply deleting the App itself does not constitute a termination of your Trial Account.
Following the expiration of your Trial Account, you may purchase a fee-based premium subscription User Account (“Premium Account”) through or on the App. A Premium Account provides you with continued services in exchange for a fee charged by 20bn in advance on a periodic basis. You may be required to agree to additional terms (“Premium Account Terms”) of any such Premium Account either at the time of purchase or when you provide payment information to activate a Trial Account (as described below) and you acknowledge that additional, fresh, and sufficient consideration will be exchanged between you and 20bn at such time. Any Premium Account Terms you agree to when purchasing a Premium Account shall form an integral part of this agreement and are hereby incorporated by reference.
We may offer Trial Accounts in, at least, the following two ways:
- at our sole discretion, we may require you to enter payment information, such as credit card and billing information, in addition to the information collected in section 2.3 “Registration” above in order to activate a Trial Account. In such case, if you cancel your Premium Account prior to the expiration of the Trial Period, you are nonetheless entitled to use or access your Premium Account through to the end of the Trial Period, after which time we may deactivate or terminate your User Account or otherwise limit your access to the App. Upon the expiration of the Trial Period, the applicable fees for your Premium Account will become due and payable. You must cancel your Premium Account at least 24 hours prior to the expiration of the Trial Period to avoid incurring any fees related to your Premium Account. Upon non-payment of your Premium Account fees, we may deactivate or terminate your User Account or otherwise limit your Use of the App; or
- at our sole discretion, we may not require you to enter any payment information in order to activate a Trial Account. In such a case, if you cancel your Trial Account prior to the expiration of the Trial Period, you are nonetheless entitled to use or access your Trial Account through to the end of the Trial Period. Upon the expiration of the Trial Period, if you have not provided payment information and purchased a Premium Account, we may deactivate or terminate your User Account or otherwise limit your access to the App. Immediately upon you purchasing a Premium Account during your Trial Period, your Trial Account will be terminated and your Use of the App will continue under your Premium Account.
Subject to the Premium Account Terms for the Premium Account you select:
The fees for any Premium Account or Premium Accounts offered by 20bn will be indicated on or through the App and will be presented to you in the applicable Premium Account Terms at the time of your purchase of such a Premium Account or your activation of a Trial Account, as applicable. Unless specifically stated otherwise, all prices include value added tax. 20bn reserves the right to change any fees for any Premium Account at any time and will provide you notice of any such changes. Your continued use of or access to your Premium Account following notice of any change to the applicable fees shall constitute your acceptance of such change.
All User Accounts may remain active for an indefinite period, unless terminated in accordance with these Terms.
To the maximum extent permitted by applicable law, you agree to at all times defend, indemnify, and hold harmless Twenty Billion Neurons GmbH, our affiliates and licensors, and our and their officers, directors, agents, subsidiaries, joint ventures, partners and employees from and against any and all claims, actions, proceedings, demands, liabilities, damages (whether direct, indirect, incidental, consequential, or otherwise), judgments, awards, losses, liability, costs, or expenses (including reasonable legal fees), sustained, incurred, or paid by the us or arising or relating to your breach of these Terms or your Use of the App, including without limitation any User Content you submit, post, publish, display, or otherwise transmit on or through the App, or otherwise resulting from any threatened claim, claim, demand, suit, proceeding (whether before an arbitrator, court, mediator, or otherwise or leading up to such forum), or investigation made by any third-party due to or arising out of your breach or violation of these Terms, of any User Content of yours, your Use of or connection to the App, or your violation of any law or third-party’s rights.
7. LIMITATIONS OF LIABILITY
EXCEPT TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL 20bn, ITS AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS BE LIABLE, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMIC, OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF USE, LOST PROFITS, LOST GOODWILL OR BUSINESS REPUTATION, LOST DATA, OR LOST SAVINGS, EVEN IF THE COMPANY OR ANY OF ITS LAWFUL AGENTS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM, RESULTING FROM YOUR USE OF OR INABILITY TO USE THE APP OR ANY CONTENT ON THE APP, INCLUDING WITHOUT LIMITATION: (A) ANY CHANGES 20bn MAY MAKE TO THE APP OR TO ANY CONTENT ON THE APP, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE APP OR ANY CONTENT ON THE APP; (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO SEND, DISPLAY, OR STORE ANY ADS, USER CONTENT, OR OTHER COMMUNICATIONS OR DATA MAINTAINED OR TRANSMITTED BY OR THROUGH THE APP OR ANY CONTENT ON THE APP, INCLUDING USER CONTENT; (C) YOUR FAILURE TO PROVIDE US WITH ACCURATE USER INFORMATION OR TO KEEP USER LOGIN DETAILS SECURE AND CONFIDENTIAL. NOTWITHSTANDING THE FOREGOING, IF 20bn IS FOUND TO BE LIABLE FOR ANY REASON, ITS LIABILITY TO YOU OR ANY THIRD-PARTY IS LIMITED TO THE GREATER OF: (A) THE TOTAL FEES SUCH PARTY MADE TO THE COMPANY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY; AND (B) $150 CAD.
7.1 Availability, Completeness, and Quality
You understand and agree that the App, any content on the App , and any services or items found or attained through the App are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied, including without limitation the implied warranties of merchantability, fitness for particular purpose, or non-infringement.
Except as otherwise expressly required by applicable law, we make no representations, warranties, conditions, or other terms (whether express or implied) in relation to the provision of the App or any content on the App, including without limitation as to completeness, security, reliability, suitability, accuracy, availability, or currency of the App or any content on the App, that the App or any content on the App will be free from bugs, errors, or omission, or as to the satisfactory quality or fitness of the App or any content on the App for a particular purpose. We assume no obligation to update the App or any content on the App. The App or any content on the App may be changed without notice to you.
To the maximum extent permitted by applicable law, we exclude all liability (whether arising in contract, tort, breach of statutory duty, or otherwise), which we may otherwise have to you as a result of any error or inaccuracies in the App or any content on the App, the unavailability of the App for any reason, or any representation or statement made on or through the App or any content on the App.
We are not responsible for any content on the App, including User Content, that you may find undesirable or objectionable.
We cannot and do not guarantee or warrant that files or data available for downloading from the internet or the App will be free of viruses or other destructive code. You are solely and entirely responsible for your Use of the App and your device, internet, and data security. To the fullest extent provided by law, we will not be liable for any loss or damage caused by denial-of-service attack, distributed denial-of-service attack, overloading, flooding, mailbombing or crashing, viruses, trojan horses, worms, logic bombs, or other technologically harmful materials that may infect your equipment, device programs, data, or other proprietary material due to your Use of the App or any services or items found or obtained on or through the App or to your downloading of any material posted on or through the App, or on any website linked to the App.
7.3 Third-Party Sites
The App or content on the App may contain links to third-party sites. We do not assume responsibility for the accuracy or appropriateness of, and have no control over, the information, data, opinion, advice, or statements contained at such sites, and make no representations about any such websites that may be accessed from the App or from any content on the App. Where you access such sites, you acknowledge and agree you are doing so at your own risk. Your use of a third-party site may be governed by the terms and conditions of such site.
In providing links to third-party sites, we are in no way acting as a publisher or disseminator of any material contained on those sites and do not and do not seek to monitor or control such sites.
A link to a third-party site does not mean and should not be construed to mean that we are affiliated or associated with such third-party in any way. We do not recommend or endorse any material found on such third-party sites. The mention of another party or its product or service on the App or in any content on the App is not and should not be construed as an endorsement of that party or its product or service.
7.4 No Reliance
Any reliance you may place on the App or any content on the App is at your own risk. Any content provided by us on or through the App is provided for general information purposes only and to inform you about us and our products, news, features, services, and websites. Such content does not constitute medical, health, technical, financial, or legal advice, or any other type of advice, and should not be relied on for any purpose. You agree to apply your own judgment or obtain specific or professional advice before taking, or refraining from, any action or inaction on the basis of the App or any content on the App, including User Content, including without limitation the use of the App or any content on the App, including User Content, as the basis for any conclusions.
7.5 No Offer of Sale
Unless explicitly stated, the App and the content on the App are not to be construed as an offer to sell any product or service.
7.6 Force Majeure
We shall have no liability to you for any breach of these Terms caused by any event or circumstances beyond our reasonable control including without limitation strikes, lock-outs and other industrial disputes, breakdown of systems or network access, disease, flood, fire, explosion, or accident.
7.7 Exclusions and Limitations; Consumer Protection Notice
The terms of these Terms are intended to be only as broad and inclusive as is permitted by the laws of your jurisdiction of residence.
8.1 Users of Apple Devices
This subsection 8.1 applies to you if you are Using the App on an Apple device, downloaded the App from the Apple App Store, or otherwise are relying on Apple for your Use of the App.
These Terms are between you and us; Apple is not a party to these Terms. Subject to and in accordance with these Terms, we are responsible for the App and any content on the App, and as between us and Apple, we are solely responsible. In the event of an irreconcilable conflict between the terms of these Terms and any applicable Apple terms and conditions, the Apple terms shall prevail to the minimum extent required by Apple.
The license granted to you by us under these Terms are for use only on Apple-branded products that are owned or controlled by you, though the App may be used or accessed by other Apple accounts associated with yours via Apple’s family sharing, volume purchasing, or other similar features that may exist from time to time.
Any request for support you may make with respect to the App should be directed to us and not Apple. You acknowledge that Apple is under no obligation to help you with any support or maintenance of or for the App. In the event of any failure of the App to conform to any applicable warranty provided by us in accordance with these Terms, you may notify Apple and Apply may refund the purchase price for the App to you in accordance with its policies, as they exist from time to time. You acknowledge that to the maximum extent permitted by applicable law Apple will have no other warranty obligation with respect to the App. Apple is further not responsible for addressing any claims of user of the App or any third-party relating to the App or a user of the App’s possession or Use of the App, including without limitation as it relates to product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement, or claims arising under consumer protection, privacy, or similar legislation, or the investigation, defense, settlement, or discharge of any intellectual property-related infringement claim.
By Using the App in a manner that causes this subsection 8.1 to apply to you, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a terrorist supporting country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms and, upon your acceptance of these Terms in the manner set out herein, Apple and/or its subsidiaries will have the right and will be deemed to have accepted the right to enforce these Terms against you as a third-party beneficiary hereof.
8.2 No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
8.3 Place of Performance
The place of performance for all obligations arising from the legal relationship between the parties is the registered office of us.
8.4 Law and Forum for Disputes
These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to any choice of law provision, principle, or rule, and notwithstanding your domicile, residence, or physical location. For the purpose of all legal proceedings, including arbitration, these Terms shall be deemed to have been performed in the Province of Ontario.
Any disputes, controversy, disagreement, or claim arising under, out of, relating to, or in connection with these Terms or any breach thereof, including without limitation disputes arising from or concerning its existence, interpretation, violation, validity, non-performance, or termination, or the contractual relationship created by these Terms, shall be referred to and finally resolved by final and binding arbitration under the Canadian Arbitration Association Arbitration Rules, which can be found on the website of the Canadian Arbitrage Association (see: www.canadianarbitrationassociation.ca). The place of the arbitration shall be Toronto, Ontario. There shall be one (1) arbitrator. The language of the arbitration shall be English.
If for any reason the preceding paragraph is deemed invalid, void, or unenforceable, the courts of the Province of Ontario shall have jurisdiction to entertain any action arising under or out of these Term. You and us agree to irrevocably attorn and submit to the exclusive jurisdiction of the courts of the Province of Ontario. You further waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
You agree to waive any right you may have to a trial by jury or to commence or participate in any class action against us related to the App or any content on the App, including User Content, or these Terms.
8.5 Effective Date
These Terms are dated September 25, 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 from time to time.
8.6 No Waiver
No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Term operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Any term of these Terms that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of these Terms, all without affecting the remaining terms of these Terms or affecting the validity or enforceability of such terms in any other jurisdiction. Nothing in these Terms shall operate to prejudice any mandatory statutory requirement or your statutory rights.
8.8 Entire Agreement
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.
You may not assign, sublicense or otherwise transfer any of your rights and obligations in these Terms to any other person.
Part B – Jurisdiction-Specific Information, Terms, and Conditions
If you are a resident of a jurisdiction named in the section headings of the following sections, the additional terms and conditions contained therein will apply to you. In the case of a conflict between the terms of Part A of these Terms and the terms of Part B of these Terms applicable to you, the applicable terms of Part B will prevail.
Section B.1 – Habitual Residents of the European Union
B.1.1 GENERAL INFORMATION
The App is provided by:
Twenty Billion Neurons Inc.
310 Spadina Avenue
Toronto, Ontario, M5T 2E8
+1 416 583 5283 | email@example.com
Twenty Billion Neurons GmbH
B.1.2 GENERAL INFORMATION
The user contract between you and 20bn is executed when you activate the “purchase”-button in the checkout. You will receive a confirmation e-mail containing all details of the contract. This e-mail will also state, whether you 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.
You can edit your entries in the checkout process using the functions of the App itself or the general functionalities of the iOS or iPadOS operating system of your device.
This contract can only be concluded in English.
These full terms and conditions can be downloaded here at any time.
B.1.3 RIGHT TO WITHDRAWAL
If you have purchased a Premium Account, you have the right to withdrawal set out in this section. However, this Section does not apply if you have waived your right to withdrawal by expressly consenting to 20bn beginning its performance of the contract prior to expiry of the withdrawal period set out in subsection B.3.1.
B.1.3.1 Right of Withdrawal
You have the right to cancel this contract within fourteen days without giving reasons. The withdrawal period is fourteen days from the date of execution of the contract, as described in section B.2. In order to exercise the right of withdrawal, you must inform 20bn of your 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, although doing so is not mandatory. You may fill out and submit the standard withdrawal form (provided below) or other clear statement to the following address: firstname.lastname@example.org. If you make use of this option, 20bn will promptly send an email confirming receipt of such withdrawal. For greater clarity, 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.
B.1.3.2 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 contract. For this refund, 20bn will use the same means of payment that you used for the original transaction, unless you and 20bn expressly agreed otherwise. In no event will 20bn charge you 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
- 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)
(*) Delete as applicable
B.1.5 LAW AND FORUM FOR DISPUTES
Nothing in subsection 8.4 of these Terms shall be construed as to deprive the User of the protection afforded to them by provisions of the law of their habitual residency.
Notwithstanding subsection 8.4, no arbitration has to take place in case of disputes, controversy, disagreement, or claim arising under, out of, relating to, or in connection with these Terms or any breach thereof. The place of jurisdiction shall be determined according to the statutory provisions.
20bn does not participate in dispute resolution proceedings before a consumer arbitration board in accordance with § 36 of the German Act on Alternative Dispute Resolution in Consumer Matters (VSBG).
The EU Commission has created an online platform for online dispute resolution (OS platform). This can be accessed at http://ec.europa.eu/consumers/odr.
The App is subject to legal liability for defects.
Section 7 as well as limitations of liability in subsections 7.1, 7.2 and 7.4 of these Terms do not apply. Instead, the following regulations on liability and warranty of 20bn apply to all claims for damages, defects or replacement claims of the any user of the App arising from or in connection with their Use of the App regardless of their legal base (e.g. warranty, default, impossibility, breach of duty, existence of an obstacle to performance, unlawful act, or the like), but not to claims of any user of the App:
- 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 Council directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC); or
To the aforementioned exceptions the statutory regulations remain applicable.
The use of the App through a Trial Account 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. Our liability for defects is limited to cases where we fraudulently conceal a legal defect or a defect in the App; in this case we are liable to compensate you for any damage arising from such concealment. We are not liable for ordinary or simple negligence. We do not assume any duties of conduct towards you 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 execution of the contract.
The liability without fault of us - if tenancy law applies - for defects that already existed when the contract was executed 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
Section 6 of these Terms does not apply.
Section B.2 – Residents of the State of New Jersey
If you have rights under New Jersey’s consumer protection laws, the terms of sections 6, 7 and its subsections, and subsections 8.3, 8.5, 8.6, 8.7, and 8.8 of these Terms do not limit or waive your rights under New Jersey law and the provisions in these Terms are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, we reserve all rights, defenses, and permissible limitations under the laws of New Jersey and under the laws of your jurisdiction of residence.