Effective Date: [27.08, 2020]
These Terms of Service (“Terms”) govern your use of (1) our website (the “Site”), (b) your purchase and use of Products (defined below), and (3) your access to and use of the services, including the various mobile applications, websites, SMS, APIs, email notifications, applications, buttons, widgets, features, ads, and commerce services and any information, text, links, graphics, photos, audio, videos, or other materials or arrangements of materials uploaded, downloaded or appearing on or through the Site or otherwise governed by these Terms (collectively with the Site, the “Services”), which are owned or operated by Qingdao WattPower Information Technology Co., Ltd. doing business as Magene Fitness (the “Services”). “We”, “us”, “our”, or “Magene Fitness” means Qingdao WattPower Information Technology Co., Ltd. doing business as Magene Fitness. “You”, “your” or “User” means the person indicating acceptance of these Terms or using the Services.
Our Privacy Policy, available at Privacy Policy is incorporated by reference into these Terms. Please read these Terms and the Privacy Policy carefully before you access the Services, as these Terms form a binding legal agreement between you and Magene Fitness.
These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Site or Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICES. YOUR USE OF OUR SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE MAGENE FITNESS PRIVACY POLICY.
1. Overview of Services; Disclaimer
1.1. Overview of Services. Magene Fitness offers workout applications, smartphone-connected fitness devices, indoor cycling equipment and other products and services including sensors and devices for the cyclist.
1.2. Disclaimer. We reserve complete and sole discretion with respect to the operation of the Services. We reserve the right to change terms and warranties without notice. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of the Services at any time.
2. Your Eligibility; Your Responsibility
To be eligible to use the Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to Magene Fitness; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of Magene Fitness or a third party.
You assume all responsibility for your use of, and access to, the Services. Accounts are for a single user. Any multiple-party use is prohibited. For example, sharing a login between non-entity individual users is prohibited.
3. Personal Information; Your Content; Your Account
3.1. Accuracy. By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
3.2. Privacy. To use our Services, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, sell, store and otherwise use your information in accordance with the terms of the Magene Fitness Privacy Policy, available at http://www.onelap.cn/protocol/2020062201/en/privacyProtocol.html
3.3. Interactions with Other Users. You are solely responsible for all interactions with other users. You acknowledge and agree that we do not have an obligation to verify any Content or other information provided by users on the Services. Magene Fitness offers various forums which allow you to post comments. Magene Fitness also enables sharing of information by allowing users to post Content and information, including links and other information. Pursuant to the license granted by you above, Magene Fitness may grant other users of the Services access and share rights to your Content and other information in accordance with these Terms, your settings and the nature of your connection with such other users. Information you share may be seen and used by other users of the Services. Magene Fitness cannot guarantee that users of the Services will not use the information that you share on Magene Fitness, nor the manner of use. Magene Fitness is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. You are solely responsible for your interactions with other users. Additionally, Magene Fitness is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release Magene Fitness from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Services, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Services or were otherwise provided by a user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Services.
3.4. Social Media Integration. The Services may allow you to enable or log in to the Services via various social networking services (“Social Network Service(s)”). By directly integrating these services, we make your online experiences richer and more personalized, including the ability to share pictures of your pets. To take advantage of this feature, we will ask you to log into or grant us permission via the relevant Social Network Service. When you add a Social Network Services account to the Service or log into the Service using your Social Network Services account, we will collect relevant information necessary to enable the Service to access that Social Network Service and your data contained within that Social Network Service. As part of such integration, the Social Network Service will provide us with access to certain information that you have provided to the Social Network Service, and we will use, store and disclose such information in accordance with our privacy statement. However, please remember that the manner in which Social Network Services use, store and disclose your information is governed by the policies of such third parties, and Magene Fitness shall have no liability or responsibility for the privacy practices or other actions of any Social Network Services that may be enabled within the Service.
Magene Fitness cannot guarantee the continued availability of any Service features that interoperate with a Social Network Service, and may cease providing them without notice or entitling you to a refund, credit or other compensation, if for example and without limitation, the provider of a Social Network Service ceases to make the Social Network Service available for interoperation with the corresponding Service features in a manner acceptable to Magene Fitness.
3.5. Your Account. The account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
3.6. Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Services or otherwise relating to Magene Fitness (“Feedback”) to Magene Fitness. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Magene Fitness shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Magene Fitness under any circumstances relating to such Feedback.
4. Personal Use; Limited License; Ownership
Subject to the terms and conditions herein, Magene Fitness grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Services through a generally available mobile device, web browser or Magene Fitness authorized Site to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host Content for others. You may not copy or download any content from the Services except with the prior written approval of Magene Fitness. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and Magene Fitness.
Furthermore, without the prior written approval of Magene Fitness, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Services. Any commercial use not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using. The Services provided by Magene Fitness are licensed, not sold. The Services, and all copies of the Services, are owned by Magene Fitness or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. Magene Fitness reserves all rights not expressly granted to you herein. You agree that you have no right to any Magene Fitness trademark or service mark and may not use any such mark in any way unless expressly authorized by Magene Fitness.
Making unauthorized copies or distribution of Site content or otherwise violating these Terms may result in the termination of your Magene Fitness account, prohibition on use of the Services, and further legal action. Magene Fitness reserves the right to limit your use of or access to the Services, in its sole discretion in order to maintain the performance and availability of the Services and to enforce these Terms of Service.
Magene Fitness is not liable for the loss, corruption, alteration or removal of any content or other information transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold Magene Fitness harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Services.
5. Products
5.1 Availability. The Site or other Services may make available listings, descriptions, and images of products and other goods (collectively, “Products”). Such Products may be made available by us or by third-parties. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such listings, descriptions, or images (including any features, specifications, and prices contained on the Services). Such information and the availability of any Product are subject to change at any time without notice. Magene Fitness is not responsible for, and cannot guarantee the performance of, goods and services provided by third-parties, including Magene Fitness and its affiliates (and its and their subsidiaries, suppliers, vendors, contractors, and licensors; and its and their directors, officers, employees, and agents), our advertisers, or other third-parties to whose sites we link. While our goal is to provide accurate information, Product packaging and material may contain more and/or different information than that provided on the Services, including the Product description, country of origin, and other information. Always read labels, warnings, directions, and other information provided with the Product before using the Product. For additional information about a Product, please contact the manufacturer. If you find a Product is not as described, your sole remedy is to return it in resellable condition (except for Items with manufacturing defect or damaged during shipment), in the original manufacturer’s packaging and with all original contents included, subject to and in accordance with our return policy. It is your responsibility to ascertain and obey all applicable local, state, federal, and foreign laws (including minimum age requirements) regarding the purchase, possession, and use of any Product.
5.2 Payment Methods.
5.2.1. PayPal. With PayPal, you can pay easily, quickly and safely online at Magene Fitness. To pay via PayPal, simply select ‘PayPal’ as a payment method during checkout. Then, log in to your personal PayPal account with your e-mail address and PayPal password to confirm the payment amount. Available to both US and International customers except China.
6. Term; Fees; Payment Terms
6.1 Term. These Terms for the Services will commence upon your acceptance, use of the Site or any Services, or your order of Products. With respect to the Site and Services these Terms will continue for so long as you access any of the Site or Services, unless earlier terminated in accordance with these Terms.
6.2. Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, these Terms may be terminated as provided below:
6.2.1. By either party if the other party commits a material breach of these Terms and such breach remains uncured 30 days after written notice of such breach is delivered to such other party, with a material breach including your failure to pay, when due, any fees due to Magene Fitness; or
6.2.2. By either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
6.3. Effect of Termination or Expiration. The expiration (as distinct from the termination) of these Terms will not terminate any order of Products (“Order”) that is then in effect and not otherwise terminated and, notwithstanding anything in this Section 5.3, the terms and conditions of these Terms will continue in effect with respect to any such Order until its expiration or termination. Subject to the preceding sentence, upon expiration or termination of these Terms for any reason: (a) all Orders hereunder will terminate, and all rights and licenses granted by Provider hereunder to Customer will immediately cease; and (b) Customer will immediately cease use of any Services. All terms and conditions herein that by their nature should survive termination will survive the termination or expiration of these Terms.
7. Third-Party Content & Websites
We do not control, and we are not responsible for, any data, information, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
From time to time, the Services may contain references or links to third-party materials not controlled by Magene Fitness or its suppliers or licensors. Magene Fitness provides such information and links as a convenience to you and should not be considered endorsements of such sites or any services, products or information offered on such sites. You acknowledge and agree that Magene Fitness is not responsible for any aspect of the information contained in any third party materials or on any third party sites accessible or linked to the Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that this Agreement does not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.
8. Acceptable Use Policy
You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use our Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
· Using the Services while operating a motor vehicle;
· The transmission or posting of chain letters or pyramid schemes, or other acts that involve deceptive online marketing practices or fraud;
· Acts that may materially and adversely affect the quality of other users’ experience;
· Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
· Introducing malicious programs into Magene Fitness’ Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
· Engaging in any monitoring or interception of data not intended for you without authorization;
· Attempting to circumvent authentication or security of any host, network, or account without authorization;
· Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
· Adapt, modify or create derivative works based on the Services, technology underlying the Services, or other users’ Content or other information, in whole or part;
· Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Services (excluding Content posted by you) except as permitted in these Terms, or as expressly authorized by Magene Fitness in writing;
· Using any method, software or program designed to collect identity information, authentication credentials, or other information;
· Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
· Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
· Transmitting, receiving, uploading, using or reusing material that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
· Falsifying user identification information;
· Using the Services for anything other than lawful purposes including, but not limited to, intentionally or unintentionally violating any applicable local, state, national or international law; or
· Impersonating any person or entity, including, but not limited to, a Magene Fitness representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
Magene Fitness enforces a zero-tolerance SPAM policy regarding information transmitted through our network. Magene Fitness may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following:
· Bulk unsolicited e-mail, promotional material, or other forms of solicitation sent via the Services, or e-mail that advertises any IP address belonging to Magene Fitness or any URL (domain) that is hosted by Magene Fitness.
· The use of web pages set up on ISPs that allow SPAM-ing that directly or indirectly reference customers to domains or IP addresses hosted by Magene Fitness.
· Forging or misrepresenting message headers, whether in whole or in part, to mask the true origin of the message.
If Magene Fitness determines that you have posted one or more articles of SPAM, we may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.
You agree not to use the Services for the purpose of recruiting for another website or service that offers competing functionality to the Services.
9. Copyright Protected Materials
Magene Fitness respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Magene Fitness has the right, but not the obligation, to remove from the Services any files, material, information, software or other material Magene Fitness believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: service@magene.cn.
10. Right to Restrict or Terminate Access
Magene Fitness may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Magene Fitness in its reasonable discretion believes violates the letter or spirit of any of these Terms. If Magene Fitness denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.
In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, Magene Fitness may store and make your data available to you for a period of up to 30 days but reserves the right to delete all of your content, data, and other information stored on Magene Fitness’s servers at any time. Magene Fitness will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by Magene Fitness pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Magene Fitness will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Services, or the termination thereof.
You may terminate these Terms by terminating your use of the Services and any related account. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. Termination of these Terms or the Services does not relieve you from your obligation to pay Magene Fitness any amounts owed to Magene Fitness.
11. Security
You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to Magene Fitness any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords. Magene Fitness shall not be liable for any unauthorized use of payment accounts.
12. Disclaimer of Warranty
Actual service coverage, speeds, locations and quality may vary. Magene Fitness will attempt to provide the Services at all times, except for limited periods for maintenance and repair. However, the Services may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Services or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users or the Services. The accuracy and timeliness of data received is not guaranteed.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL SITE CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. MAGENE FITNESS DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. MAGENE FITNESS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, MAGENE FITNESS’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
13. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL MAGENE FITNESS, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“MAGENE FITNESS PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES.
A MAGENE FITNESS PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID MAGENE FITNESS FOR YOUR USE OF THE SERVICES IN THE PRIOR TWELVE (12) MONTHS; OR (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE MAGENE FITNESS PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MAGENE FITNESS TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN SECTIONS 11 AND 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
14. Indemnity
You agree to defend, indemnify and hold the Magene Fitness Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any rights of another; or (iv) your use of the Services. Magene Fitness reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
15. Dispute Resolution
Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution Magene Fitness mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
16. Electronic Notices and Disclosures
You acknowledge and agree that Magene Fitness may provide notices and other disclosures to you electronically by posting such notices or other disclosures on Magene Fitness’s website or by emailing it to you at any email address provided to Magene Fitness by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
17. Changes to the Terms
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to the Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.
Your use or continued use of the Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
18. Third-Party Terms and Content
We do not control, and we are not responsible for, any data, content, services, or products (including software) that you access, download, receive or buy while using the Services or Products. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
From time to time, the Services may contain references or links to third-party materials not controlled by Magene Fitness or its suppliers or licensors. Magene Fitness provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that Magene Fitness is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that this Agreement does not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.
If you are accessing the Services through an application from the Apple App Store, you and Magene Fitness agree to the following additional terms:
- Magene Fitness and you acknowledge that these Terms are concluded between you and Magene Fitness only, and not with Apple, and Magene Fitness, not Apple, is solely responsible for the Services and the content thereof. Magene Fitness and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof. Magene Fitness and you agree to be bound by the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
- You may only access the Services on an iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
- To the extent set forth herein or required by applicable law, Magene Fitness is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
- Magene Fitness, not Apple, is solely responsible for any product warranties set forth in these Terms, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be Magene Fitness’s sole responsibility, to the extent not disclaimer herein.
- Magene Fitness and you acknowledge that Magene Fitness, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or your possession and use of the Services infringe any third party’s intellectual property rights.
- If you send SMS messages through Services, you acknowledge that standard text messaging rates or other carrier charges may apply to such use.
- If you authorize Magene Fitness to access your Address Book on your iOS product, you acknowledge and agree that Magene Fitness may access and use such data to invite share job with your contacts.
Magene Fitness may send you Push Notifications and use your geo-location data if you authorize Magene Fitness to do so.
19. Miscellaneous
These Terms, along with any rules, guidelines, or policies published on the Magene Fitness homepage constitute the entire agreement between Magene Fitness and you with respect to your use of our Services. If there is any conflict between the Terms and any other rules or instructions posted on the Services, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by Magene Fitness. Notwithstanding the foregoing, Magene Fitness reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. These Terms shall be governed by, and construed in accordance with, the laws of that is, Licang District, Qingdao City, Shandong Province, China, without reference to its choice of law rules. Subject to the arbitration provisions above, exclusive venue for any action arising out of or in connection with this agreement shall the people's court. The parties each hereby consent to the jurisdiction and venue in Licang District, Qingdao City, Shandong Province, China, and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Magene Fitness shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. You may not assign your rights or obligations under these Terms without the prior written consent of Magene Fitness. Magene Fitness’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that Magene Fitness may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Magene Fitness, pursuant to this Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Magene Fitness. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, or any other materials issued in connection therewith, or exploitation of the Services or any data or Content or other material used or displayed through the Services. Except as otherwise expressly set forth herein, there shall exist no right of any person, other than you and Magene Fitness, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by these Terms. If the Terms are available in multiple languages such as Chinese and English, and the corresponding content is inconsistent, the Chinese version shall prevail.
If you have any questions, complaints, or claims, you may contact Magene Fitness at ：support@magenefitness.com.