PUMPUP CERTIFIED COACHING

TERMS AND CONDITIONS

Effective date: December 30, 2016

THESE TERMS AND CONDITIONS CONTAIN LEGAL OBLIGATIONS. PLEASE READ THEM CAREFULLY BEFORE USING THE PLATFORM SERVICES.

These terms and conditions (“Terms and Conditions”) form a legal agreement between you and PumpUp Inc. (“PumpUp”) and set forth the terms and conditions of your use of the Platform Services (as defined below), and represents the entire agreement between you and PumpUp concerning the subject matter hereof.

References to “you” and “your” in these Terms and Conditions are to you and anyone who uses the Platform Services through your registered account for the Services (as defined below). References to “we”, “us” and “our” in these Terms and Conditions are to PumpUp.

Your electronic acceptance of these Terms and Conditions signifies that you have read, understand, acknowledge and agree to be bound by these Terms and Conditions and any other agreements or policies that are expressly incorporated in these Terms and Conditions.

BY ACCESSING AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, DO NOT, AND YOU MUST NOT PROCEED TO REGISTER FOR THE PLATFORM SERVICES.

If you have any questions or concerns about these Terms and Conditions, please contact us at support@PumpUp.co.

1.              Definitions

1.1           In these Terms and Conditions, in addition to the terms defined elsewhere in these Terms and Conditions, the following terms have the following meanings:

(a)           Coaching Services” means the coaching, training or similar services offered by Fitness Professionals, which may include, but is not limited to, providing personalized workout, training and online accountability and motivation services or similar services. Coaching Services are accessed and provided via the Platform Services.

(b)           Fitness Professional” means a fitness instructor, coach, trainer or similar professional that is authorized to provide Coaching Services via the Platform Services.

(c)           Platform Services” means the features and functionality offered under the ‘PumpUp Certified Coaching’ brand, or any replacement or supplemental brand, from time to time, that, among other things, (i) connects Fitness Professionals who are available to provide Coaching Services to authorized users seeking to receive Coaching Services, (ii) then allows such Fitness Professionals to provide Coaching Services to such users, and (iii) provides an online platform for Fitness Professionals and authorized users to receive Coaching Services from, interact with and, Fitness Professionals.

(d)           Services” means the services provided from time to time via PumpUp’s digital technology platform that is accessible via the Software.

(e)           Software” means the PumpUp software application that a user can use on a computer or supported mobile device in order to access and use the Services; the Software may be downloaded or accessed on the Internet.

(f)            User Agreement” means PumpUp’s user agreement, which is available at http://www.pumpup.com/ terms, as it may be amended, modified, supplemented or restated from time to time

(g)           Website” means PumpUp’s website available at pumpup.com and all other websites owned and operated by PumpUp that redirect to pumpup.com and all subdomains of pumpup.com.

2.              Scope of these Terms and Conditions; Modification of these Terms and Conditions

2.1           With respect to Platform Services, PumpUp provides a digital technology platform that (i) connects Fitness Professionals who are available to provide Coaching Services to authorized users seeking to receive Coaching Services, and (ii) then allows such Fitness Professionals to provide Coaching Services to such users. Platform Services are accessible via the Website, the Software and any other websites or applications from which PumpUp may make Platform Services available.

2.2           These Terms and Conditions apply to your access, use and subscription to Platform Services. Your use of the Software and the Services are otherwise governed by the terms of the User Agreement. Except as may otherwise be expressly stated in the User Agreement, these Terms and Conditions shall prevail over the User Agreement in the event of a conflict.

2.3           Subject to applicable law, we reserve the right, in our sole and absolute discretion, to modify all or any portion of these Terms and Conditions at any time without incurring any liability or obligation whatsoever to you or any other person or entity. If we do this, we will post the changes to these Terms and Conditions at least thirty (30) days before the modification comes into effect, and will indicate at the top of this page the date these Terms and Conditions were last modified. You may refuse the modification and rescind, or cancel the Platform Services without cost, penalty, cancellation fee or cancellation indemnity, by cancelling the Platform Services. You always have the right to cancel the Services at any time if changes to these Terms and Conditions are not acceptable to you; however, payments made for Subscription Services (as defined below) are non-refundable (see Section 6).  To the fullest extent permitted by applicable law, your continued access to and/or use of the Services after the date specified in such notice constitutes your full acceptance of, and agreement to be legally bound by, these Terms and Conditions, as modified. We generally will endeavor notify you of changes or modifications to these Terms and Conditions through the Services. We may also, in our sole discretion, occasionally notify you of changes or modifications to these Terms and Conditions by email. It is therefore very important that you keep your account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

2.4           Subject to our right to make modifications, no other statements (written or verbal) will change these Terms and Conditions. You may not make any changes to these Terms and Conditions.

3.              Privacy

3.1           In order to offer you the Platform Services and facilitate your receipt of Coaching Services, we collect account, payment and other personal information from you, and will share certain personal information with Fitness Professionals whom you wish to interact, and do interact, with. Any collection, use and/or disclosure of your information by us in connection with the Services is governed by these Terms and Conditions and our privacy policy, which is available at http://pumpup.com/privacy (the “Privacy Policy”).  You hereby consent to our collection, storage, use and disclosure of personal information in accordance with the Privacy Policy and these Terms and Conditions (including, but not limited to, as is described in Sections 5.2 and 6.7 below). In the event of a conflict between these Terms and Conditions and the Privacy Policy, these Terms and Conditions will govern. Notwithstanding the foregoing, PumpUp reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request.

3.2           The Privacy Policy may be updated from time to time at our discretion. Changes to the Privacy Policy will be effective when we post the changes to the Website, the Services or as otherwise provided for in the Privacy Policy.

4.              Platform Services

4.1           Coaching Services are accessed via the Platform Services. The Platform Services are made available solely for your personal, non-commercial use.

4.2           The Platform Services are designed and intended for adult usage.  If you are under 18 years of age, you must consult your physician before engaging in any of the exercises contained in the Platform Services to determine whether they are appropriate for your age and stage of physical development.  Additionally, if you are under the age of 18, you must obtain the consent of your parent or guardian respecting your entry into these Terms and Conditions and use of the Platform Services.  By using the Platform Services, you are representing and warranting that you have the full right to enter into these Terms and Conditions and have obtained all required permissions and such representation and warranty shall survive the termination of these Terms and Conditions.

4.3           THE SOFTWARE, THE SERVICES AND THE PLATFORM SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH FITNESS PROFESSIONALS MAY PROVIDE COACHING SERVICES AND USERS MAY RECEIVE COACHING SERVICES DIRECTLY FROM FITNESS PROFESSIONALS. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THAT: (A) PUMPUP DOES NOT PROVIDE ANY COACHING SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY PERSONAL TRAINING SERVICES, WORKOUT OR EXERCISE INSTRUCTION OR ADVICE) AND THAT ANY AND ALL COACHING SERVICES ARE PROVIDED BY FITNESS PROFESSIONALS, WHO ARE INDEPENDENT THIRD PARTIES THAT ARE NOT EMPLOYED BY PUMPUP OR ANY OF ITS AFFILIATES; AND (B) PUMPUP HAS NO CONTROL OVER THE CONDUCT OF FITNESS PROFESSIONALS OR ANY COACHING SERVICES PROVIDED BY FITNESS PROFESSIONALS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.

4.4           You specifically agree that PumpUp may rely on the accuracy of the information provided by you to PumpUp, and that PumpUp will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to PumpUp.

4.5           We reserve the right to do any of the following, at any time, at our sole discretion, with or without notice: (a) modify, suspend, or terminate operation of or your access to the Platform Services, or any portion of the Platform Services; or (b) interrupt the regular operation of the Platform Services, or any portion of the Platform Services, as necessary to perform routine or non-routine maintenance, to correct errors, or to make other changes to the Platform Services. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform Services or any part thereof.

5.              Accessing Coaching Services

5.1           As Fitness Professionals are not employees, service providers or independent contractors of PumpUp. Accordingly, Coaching Services offered to you by a particular Fitness Professional may be suspended, restricted, discontinued or otherwise terminated at any time, for any reason, with or without notice to you.

5.2           You acknowledge and agree that in order for you to receive Coaching Services from Fitness Professionals, PumpUp is required to disclose certain personal information that we collect from you to those Fitness Professionals with whom you interact with, such as your name, height, weight, gender, and location. You hereby consent to: (i) our collection, use and disclosure of your personal information in connection with your use of the Platform Services, and (ii) our disclosure of your personal information to Fitness Professionals for the purposes of enabling them to provide you with Coaching Services. PLEASE NOTE THAT WHILE SUCH FITNESS PROFESSIONALS ARE CONTRACTUALLY BOUND TO PROTECT YOUR PERSONAL INFORMATION, PUMPUP DOES NOT CONTROL FITNESS PROFESSIONALS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR PUMPUP’S OWN ACTS, PUMPUP DISCLAIMS ALL LIABILITY IN RESPECT OF THE HANDLING OF YOUR PERSONAL INFORMATION BY FITNESS PROFESSIONALS.

5.3           YOU ACKNOWLEDGE AND AGREE THAT ANY PERSONAL INFORMATION WHICH YOU CHOOSE TO DISCLOSE TO A FITNESS PROFESSIONAL IS AT YOUR OWN DISCRETION AND OF YOUR OWN VOLITION AND IS NOT SUBJECT TO THE PRIVACY POLICY. ANY DISCLOSURE OF PERSONAL INFORMATION, AND ALL INTERACTIONS WITH FITNESS PROFESSIONALS ARE SOLELY BETWEEN YOU AND SUCH FITNESS PROFESSIONALS.

5.4           Any opinions, advice, or information expressed by a Fitness Professional are of that Fitness Professional and such Fitness Professional alone. They do not reflect the opinions of PumpUp. PumpUp does not recommend nor endorse any specific Fitness Professionals, nor do we recommend or endorse any exercise, workouts, programs, advice, techniques, products, procedures, opinions, or other information or materials that may be provided to you by a Fitness Professional, including, but not limited to, as part Coaching Services.

5.5           Always consider and be mindful of your medical history, personal fitness level, and physical limitations. It is your responsibility to evaluate the accuracy, completeness, usefulness and safety of any information or recommendations given by Fitness Professionals, including, but not limited to, any exercises. Reliance on any such information, recommendations or other materials provided by any Fitness Professional is solely at your own risk. AS BETWEEN YOU AND PUMPUP, SUCH INFORMATION AND ALL COACHING SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND PUMPUP DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.

5.6           Coaching Services are being provided remotely and online. Coaching Services are not intended to be a substitute for the services of trained professionals evaluating, interacting with and supervising you in person.

5.7           Prior to participating in any program, workout, training, course, activity, exercise, diet, or use of any program, workout, exercise or regimen suggested by a Fitness Professional, or if you have any questions regarding a medical condition, seek the advice of your physician and other qualified health-care professionals. You understand that the exercises and programs suggested by, or discussed with, a Fitness Professional can be strenuous and should be scaled or done in moderation. There is an inherent risk in any exercise that, while providing some health benefits, it can also cause unknown health issues. Application or reliance on the techniques, advice, ideas, and suggestions of any Fitness Professional are at your sole discretion and risk. Be sure to first read all instructions and operating procedures with respect to any fitness or exercise equipment prior to any use.

5.8           Never disregard professional medical advice or delay in seeking it because of something a Fitness Professional has recommended, discussed with, or otherwise provided to you. Always seek the advice of your physician with any questions you may have regarding your physical or mental health and wellness. If you think you may have a medical emergency, call your physician or 911 immediately.

5.9           TO THE MAXIMUM EXTENT PERMITTED BY LAW, PUMPUP SHALL IN NO EVENT BE LIABLE TO YOU OR TO ANYONE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON INFORMATION ABOUT OR FROM ANY FITNESS PROFESSIONAL, IN CONNECTION WITH ANY COACHING SERVICES, ANY OF YOUR INTERACTIONS WITH FITNESS PROFESSIONALS OR OTHERWISE IN CONNECTION WITH ANY INFORMATION OR MATERIALS PROVIDED, MADE AVAILABLE OR FAILED TO BE PROVIDED OR MADE AVAILABLE BY A FITNESS PROFESSIONAL TO YOU.

5.10        The limitations and disclaimers in these Terms and Conditions do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.

6.              Fees for Services and Payment

6.1           As stated above, PumpUp provides a digital technology platform that (i) connects Fitness Professionals who are available to provide Coaching Services to authorized users seeking to receive Coaching Services, and (ii) then allows such Fitness Professionals to provide Coaching Services to such users. As part of facilitating the provision and receipt of Coaching Services, users purchase access to Coaching Services via the Platform Services on a subscription basis. PumpUp will collect Subscription Fees (as defined below) on behalf users and remint such amounts, less a service fee, to Fitness Professionals. No further fees, expenses or any other amounts are due from users to Fitness Professionals.   

6.2           Subscriptions to fee-based recurring Coaching Services (“Subscription Services”) can be purchased either by paying the applicable subscription fee for subscription period selected by you. More information regarding Subscription Services, subscription periods and fees are available through the Services. You agree to pay all applicable fees in connection with the Platform Services selected by you.

6.3           You must provide PumpUp with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) in order to purchase Subscription Services (as defined below).

6.4           Subject to applicable law, when you subscribe for a Subscription Services: (a) you are committing to subscribe for such Subscription Services for the entire subscription period selected by you; (b) except as expressly set out in these Terms and Conditions, PAYMENTS ARE NON-REFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS (following any cancellation, however, you will continue to have access to the Subscription Services through the end of your current subscription period); and (c) your payment for Subscription Services will AUTOMATICALLY RENEW at the end of the applicable subscription period, unless you choose to cancel and not renew your Subscription Services before the end of the current subscription period.

6.5           We may change the price for the Subscription Services from time to time, upon notice to you, which notice may be provided by means of updates on the Services. Price changes for Subscription Services will take effect at the start of the next billing period following the date of the price change. You accept the new price by continuing to use the Subscription Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Subscription Services prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.

6.6           You may choose to cancel and not renew your Subscription Services for the next applicable subscription period at any time online through the Platform Services or by contacting us directly at support@pumup.co. Following any cancellation, however, you will continue to have access to the Subscription Services through the end of your current billing period. Notwithstanding the generality of Section 12.1, we may cancel your access to Subscription Services at any time if you fail to pay amounts owing when due, subject to any applicable grace periods, or for breach of any other material provision of these Terms and Conditions or for any other reason. In such case, you will still be responsible for payment of all outstanding balances accrued through that effective date of termination. You must comply with all of the terms and conditions of these Terms and Conditions or we may cancel your Subscription Services.

6.7           We will bill all fees for Subscription Services, to your Payment Method. Unless you choose to store your information for Payment Method with PumpUp, you will be required to re-enter your Payment Method each time that you make a purchase with PumpUp. You must be authorized to use the Payment Method that you enter. Payments will be processed by our third party billing and payment processing providers (each, a “Billing Provider”). By making a purchase, you authorize PumpUp and/or the Billing Provider (as the case may be) to charge your designated Payment Method for all purchases made by you. When you provide PumpUp with your information about your Payment Method, that information, potentially along with other personal information about you, will be shared with the Billing Provider for the purposes of processing your payments. You hereby consent to our disclosure of your information (including, but not limited to, personal information) to the Billing Provider for the foregoing purposes. You further acknowledge and agree that the Billing Provider may also collect from you information about you and the collection and use of such information will be subject to the terms of any agreements or policies put in place by such Billing Provider, which may be made available to you during the payment information registration process. You acknowledge and agree that we shall have no liability to you in connection with the use and disclosure of your personal information when collected by the Billing Provider.

6.8           You remain responsible for any uncollected amounts and authorize PumpUp to continue billing the Payment Method, as it may be updated. If a payment charge to your Payment Method is declined, you acknowledge that you will no longer be able to access and use the Subscription Services. Where your Payment Method is rejected for any reason, you will also be responsible for any fees and charges associated with such rejection.  The foregoing shall not limit PumpUp’s ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable hereunder, and you shall also be responsible for paying for all reasonable fees and costs incurred by PumpUp, including legal fees, in collecting any overdue amounts or enforcing any provision of these Terms and Conditions.

6.9           From time to time, PumpUp may offer trials of Subscription Services for a specified period without payment or at a reduced rate (a “Trial”). PumpUp reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable law, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the applicable law. For some Trials, we may require you to provide your payment details to start the Trial. At the end of such trials, we may automatically start to charge you for the applicable Subscription Services subscription period on the first day following the end of the trial for the full subscription, on a recurring basis that is based on the subscription period you select when you signup. By providing your payment details in conjunction with the trial, you agree to this charge using such payment details. If you do not want this charge, you must cancel the applicable subscription services subscription or terminate your account before the end of the trial. Please see section 6.5 for how to cancel. Subscription Services cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms and conditions, we will not refund any fees that you have already paid.

7.              Conduct

7.1           In order to use the Platform Services, you must be at all times in compliance with the terms and conditions of these Terms and Conditions and applicable law.

7.2           You will not, and agree to not, do any of the following in connection with your use of the Platform Services or your receipt of Coaching Services:

(a)           interact or communicate with any Fitness Professionals through any means other than through the Platform Services, including meet with any Fitness Professional in person;

(b)           provide any false or misleading information to PumpUp or any Fitness Professional;

(c)           interact or otherwise engage with any Fitness Professional or any other person in a manner that, in the sole discretion of PumpUp:

(i)             is offensive, racist, bigoted, hateful, disrespectful, unsafe, unprofessional or is otherwise physically, emotionally or psychologically harmful, or potentially harmful, to any person;

(ii)            harasses or advocates harassment of another person;

(iii)           solicits or is designed to solicit an inappropriate or unlawful relationship with a Fitness Professional;

(iv)          constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

(v)           constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music, video or links to pirated video files;

(vi)          solicits, or is designed to solicit, passwords or personal identifying information from Fitness Professionals;

(vii)         involves criminal conduct; or

(viii)        violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person;

(d)           commit any criminal or tortious activity, including, fraud, harassment, defamation, stalking, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement, trademark infringement, or theft of trade secrets; or

(e)           impersonate or attempt to impersonate a PumpUp employee.

8.              Intellectual Property Rights

8.1           You acknowledge that the Platform Services are owned by PumpUp, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws.  You do not acquire any intellectual property or other proprietary rights under these Terms and Conditions, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Platform Services.  Your only rights to the Platform Services and any part thereof shall be those rights expressly licensed or granted to you under these Terms and Conditions.  Any rights not expressly granted under these Terms and Conditions are reserved.

9.              Disclaimer of Warranties

9.1           YOUR USE OF THE PLATFORM SERVICES AND ALL COACHING SERVICES ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE PLATFORM SERVICES, COACHING SERVICES, AND ALL INFORMATION AND MATERIALS IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE REGARDING MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, THE CORRECTNESS, ACCURACY, QUALITY OR RELIABILITY OF THE PLATFORM SERVICES, COACHING SERVICES OR ANY INFORMATION OR MATERIALS IN CONNECTION THEREWITH. IN ADDITION, WE DO NOT WARRANT THAT THE PLATFORM SERVICES WILL BE NON-INFRINGING, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT DEFECTS WILL BE FOUND OR CORRECTED. WE ALSO PROVIDE NO REPRESENTATION, WARRANTY OR CONDITION REGARDING THE ACCURACY, TIMELINESS, AUTHENTICITY, COMPLETENESS OR RELIABILITY OF THE PLATFORM SERVICES, COACHING SERVICES OR ANY INFORMATION OR MATERIALS IN CONNECTION THEREWITH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

10.           Limitation of Liability

10.1        NOT APPLICABLE TO RESIDENTS OF QUEBEC: TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PUMPUP DISCLAIMS ALL LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. PUMPUP DOES NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE, INCLUDING DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, RESULTING FROM OR IN CONNECTION WITH: (A) ANY USE OF, OR INABILITY TO USE, THE PLATFORM SERVICES, COACHING SERVICES OR ANY INFORMATION OR MATERIALS IN CONNECTION OR ASSOCIATION THEREWITH; OR (B) ANY OTHER MATTER RELATING TO THE PLATFORM SERVICES, COACHING SERVICES OR ANY INFORMATION OR MATERIALS IN CONNECTION OR ASSOCIATED THEREWITH, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF PUMPUP HAS BEEN ADVISED OF, OR COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

10.2        APPLICABLE ONLY TO RESIDENTS OF QUEBEC: EXCEPT FOR DAMAGES RESULTING FROM PUMPUP’S OWN ACTS, PUMPUP WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, RESULTING FROM OR IN CONNECTION WITH: (A) ANY USE OF, OR INABILITY TO USE, THE PLATFORM SERVICES, COACHING SERVICES OR ANY INFORMATION OR MATERIALS IN CONNECTION OR ASSOCIATED THEREWITH; OR (B) ANY OTHER MATTER RELATING TO THE PLATFORM SERVICES, COACHING SERVICES OR ANY INFORMATION OR MATERIALS IN CONNECTION OR ASSOCIATED THEREWITH.

10.3        NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PUMPUP’S TOTAL CUMULATIVE LIABILITY TO YOU FOR DIRECT OR ANY OTHER DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE PLATFORM SERVICES, COACHING SERVICES, ANY INFORMATION OR MATERIALS IN CONNECTION OR ASSOCIATION THEREWITH OR OTHERWISE UNDER THESE TERMS AND CONDITIONS EXCEED THE LESSER OF: (1) THE SUBSCRIPTION FEE AMOUNTS PAID BY YOU IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO ANY CLAIM OR DAMAGES, AND (2) ONE HUNDRED CANADIAN DOLLARS (CDN $100.00). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

10.4        You expressly acknowledge that we make the Platform Services available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth in these Terms and Conditions, and that these form an essential basis of the bargain between you and us. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth in these Terms and Conditions will survive, and, subject to applicable laws, continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of these Terms and Conditions.

11.           Indemnification

11.1        You agree to indemnify, defend and hold harmless PumpUp, its parent, subsidiaries, affiliates, officers and employees, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (a) your use or misuse of the Platform Services, (b) any breach of these Terms and Conditions by you, or (c) your violation of any third-party rights or any applicable laws. PumpUp reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with PumpUp, at your expense, in asserting any available defences.

12.           Suspension and Termination

12.1        We, in our sole discretion and without liability to us, reserve the right to cancel, terminate, restrict or suspend your access to the Platform Services or to delete your registered account and any information or user profile(s) related to such account if we reasonably believe that you are or will be in violation of these Terms and Conditions and/or any applicable laws. Any such cancellation, termination, restriction, suspension or deletion is in addition to, and not in lieu of, any rights and remedies available to us under these Terms and Conditions or any applicable law. The agreement formed by your acceptance of these Terms and Conditions will continue to apply to and be binding upon you in respect of your prior use of the Platform Services. For greater certainty, any indemnification, your payment obligations with respect to outstanding amounts, warranties, disclaimers, and limitations of liability under the Terms and Conditions remain in effect following any cancellation, termination, restriction, suspension or deletion along with those terms that by nature survive beyond any cancellation or termination, including, but not limited to, Sections 2.2, 2.3, 3.1, 4.3, 4.4, 5, 8, 9, 10, 11, 12.2 and 13.

12.2        The above-described actions are not PumpUp’s exclusive remedies and PumpUp may take any other legal, equitable or technical action it deems appropriate in the circumstances.  PumpUp will not be liable for any damage caused by any cancellation, termination, restriction, suspension or deletion.

12.3        In addition to PumpUp termination rights for cause under Section 12.2, PumpUp may cancel your subscription to the Subscription Services upon no less than thirty (30) days’ (if you are a resident of Québec, sixty (60) days’) advance written notice to you. You may cancel your recurring subscription to the Subscription Services online through the Services or by contacting us directly at support@pumup.co. Following any cancellation, however, you will continue to have access to the Subscription Services through the end of your current billing period.

13.           General Provisions

13.1        These Terms and Conditions, the User Agreement, and the documents referred to in these Terms and Conditions, constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties.  There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in these Terms and Conditions. The division of these Terms and Conditions into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions. The failure of PumpUp to exercise or enforce any right or provision of these Terms and Conditions shall not operate as a waiver of such right or provision.

13.2        These Terms and Conditions is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to these Terms and Conditions.

13.3        If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect..

13.4        It is the express will of the parties that these Terms and Conditions and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

13.5        If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as these Terms and Conditions according to age and you are under such a jurisdiction and under such age limit, you may not enter into these Terms and Conditions and may not use the Platform Services. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to use the Platform Services or services of this type, you may not enter into these Terms and Conditions and you may not use the Platform Software. By entering into these Terms and Conditions you explicitly state that you have verified in your own jurisdiction if your use of the Software and Services is allowed.

13.6        You may not transfer or assign these Terms and Conditions or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of PumpUp and any such assignment shall be null and void from the beginning. We may assign these Terms and Conditions and all rights and/or obligations hereunder to any third party without notice for any purpose, including without limitation, collection of unpaid amounts, or in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party’s assets to another entity.

14.           Contact

14.1        If you have any questions regarding these Terms and Conditions, or if you have any questions, complaints, claims or other legal concerns relating to PumpUp or its business, please contact PumpUp at:

PumpUp Inc.

342 Queen St. West, 2nd Floor
Toronto, Ontario, Canada M5V2A5
Phone: (647) 284-8228

Email: support@pumpup.co