MOVATI ON DEMAND TERMS AND CONDITIONS OF SERVICE

Last Updated: July 7, 2021

These Movati On Demand Terms and Conditions of Service (the “Terms and Conditions”) constitute a legal agreement between you and Movati Athletic (Group) Inc. (“Movati”), a corporation existing under the laws of the Province of Ontario, with offices at 295 The West Mall, Suite 410, Toronto, Ontario, Canada M9C 4Z4.

Movati operates [Movati On Demand] (the “Platform”), a digital platform that allows Qualified Members of Movati to view on-demand exercise videos and other related content made available by Movati.

These Terms and Conditions govern your access to and use of the Platform and the contents and services that Movati may offer through the Platform (collectively, the “Services”). These Terms and Conditions include, and incorporate by reference, the Movati Privacy Policy, which is available at https://movatiathletic.com/privacypolicy/.

Please read these Terms and Conditions carefully before accessing the Services. By indicating your acceptance of these Terms and Conditions, you agree to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, then you may not access or use the Services.

In these Terms and Conditions, “you” and “your” refer to you, the individual accessing the Services. Other capitalized terms are defined below in Section 1.1 of these Terms and Conditions.

1. DEFINITIONS

1.1 Definitions. Except as otherwise expressly indicated, the following capitalized terms in these Terms and Conditions have the following meanings:

Login Credentials” means the usernames, passwords, and other identifying information used by a User to access the Services;

Membership Information” means any personal information, profile information, or other similar or related information that you have provided to Movati in connection with the provision of any services or products by Movati to you, including your contact information and your billing information;

Movati Parties” means Movati, its affiliates, and their respective officers, directors, employees, agents and any other parties working for or engaged by Movati, or otherwise involved in connection with the administration of the Services;

Movati Privacy Policy” means Movati’s privacy policy, available through the Platform;

Platform Content” means the content and materials (including videos) that are made available to you or displayed by the Platform, including any Third Party Content;

Qualified Members” means a customer of Movati who is permitted to access the Services;

Term” has the meaning set out in Section 9.1 of these Terms and Conditions;

Third Party Content” has the meaning set out in Section 6.1 of these Terms and Conditions; and

User” means an individual who has been authorized by Movati to access or use the Services.

2. AMENDMENTS TO THESE TERMS AND CONDITIONS

2.1 Amendments to These Terms and Conditions. Movati may revise any terms of these Terms and Conditions at any time. The most current version will be posted on Movati’s website and on the Platform, and Movati will post a notice indicating any material changes. Movati may also notify you via email of such changes. Movati recommends that you periodically visit the Movati website or Platform to monitor any changes to these Terms and Conditions. If these Terms and Conditions are revised, you will be required to agree to the updated Terms and Conditions the next time you use the Services. If you do not agree to the revised Terms and Conditions, you must not be permitted to continue.

3. Access to The Services and Registration

3.1 Description of the Services. The Platform is a digital platform that hosts exercise videos and other fitness or health related content (“Platform Content”). If you are a Qualified Member, then, and as part of the Services offered to you under these Terms and Conditions, Movati will make available the Platform to you on a remote, internet access only, basis, and permit you to view the Platform Content hosted on the Platform on an on-demand basis. From time to time, and at its sole discretion, Movati may also provide you with other content or services through the Platform as part of the Services.

3.2 Qualification. The Services are made available by Movati to Qualified Members only. Movati may, in its sole discretion, determine and alter the qualifications required to be a Qualified Member at any time. If you cease to be a Qualified Member at any time, then your rights to access the Services under these Terms and Conditions will terminate immediately and you must stop using the Services.

3.3 Registration Process. If you are a Qualified member, you may register to access the Services via Movati’s website. Movati may also register you as a User of the Services by providing you with Login Credentials generated by Movati, or by providing you with a registration form to be filled out by you.

3.4 Login Credentials and Account Access. You shall keep your Login Credentials confidential and secure, and shall ensure that you are the only person who accesses and uses the Services using your Login Credentials. You shall report to Movati immediately if you learn or suspect any compromise or loss of your Login Credentials or any unauthorized access to or use of the Services with your Login Credentials. You agree that you will be fully responsible for all activities conducted using your Login Credentials, and that you will be liable to Movati for all losses, damages, and expenses suffered or incurred by Movati or any other person due to your breach of this Section 4. You agree that Movati will not be liable to for any losses, damages, or expenses incurred that are attributable to your breach of this Section 3.4 or for any unauthorized access to or use of the Services through your Login Credentials.

3.5 Membership Information. You shall maintain and update your Membership Information to ensure it remains correct, current, and complete. You hereby consent to the use of your Membership Information for the purposes described in these Terms and Conditions and otherwise as is necessary to enable your access to and use of the Services. Without limiting the generality of the foregoing sentence, you hereby expressly agree that Movati and Movati’s third party service providers may use your Membership Information (including any billing or payment information that you provide to Movati) for the purpose of verifying you as a Qualified Member.

3.6 Privacy. The Movati Privacy Policy is incorporated into these Terms and Conditions by reference. By accessing the Services, you consent to Movati’s collection, use and disclosure of your personal information (including any Membership Information that you may have previously provided to Movati) (“Personal Information”) for the purpose of providing the Services to you.

3.7 Your Representations and Warranties. You represent and warrant to Movati that:

  1. you are fully able and competent, and have the legal capacity under applicable law, to enter into a binding contract with Movati;
  2. you are not prohibited by law from accessing or using the Services;
  3. you have complied and will comply with all applicable laws and regulations in the performance of your obligations and the exercise of your rights under these Terms and Conditions; and
  4. all of the information you have provided to Movati, including all of your Membership Information, are true, accurate, current, and complete.

 

4. Using the Services

4.1 Grant of Rights. Subject to your compliance with these Terms and Conditions, Movati hereby provides you with a non-exclusive, revocable, non-transferable right and license, for the Term of this Agreement, to access and use the Services in accordance with these Terms and.

4.2 Your Responsibilities. In accessing and using the Services, you shall:

  1. only use the Services to view Platform Content for your personal health and fitness needs (the “Permitted Purpose”);
  2. be responsible for all activities you conduct using or in connection with the Services;
  3. comply with these Terms and Conditions, any acceptable use or other policies adopted by Movati and communicated to you from time to time, and all applicable laws relating to your use of the Services, the Platform, and any Platform Content;
  4. be responsible for providing, at your cost, all equipment and communications capabilities necessary to establish a connection to the Platform and access and use the Services;
  5. remain fully responsible for your own personal safety when using the Platform Content, including in connection with any exercises or acts you may engage in as instructed by any Platform Content; and
  6. have full discretion with respect to, and are solely responsible for, consulting with your own doctor or other healthcare professional in connection with your use of the Services and any Platform Content

4.3 Acknowledgements. You hereby acknowledge and confirm that:

  1. Movati does not guarantee, and assumes no responsibility for, the efficacy, safety, correctness, accuracy, currency, or completeness of the Services or any Platform Content;
  2. your use of the Services and any Platform Content is entirely at your own risk, and you have made your own assessment on the risk of use of the Services, the Platform, and any Platform Content;
  3. Movati will have no responsibility or liability whatsoever relating to any personal injury you may suffer as a result of your access to or use of the Services, including in connection with any exercises or acts you may engage in as instructed by any Platform Content.
  4. notwithstanding any language to the contrary in these Terms and Conditions, on the Platform, or in any Platform Content, nothing on or in the Services, the Platform, or any Platform Content constitute any medical or professional advice.

4.4 User Restrictions. You shall not access or use the Services for any purpose other than for the Permitted Purpose, nor otherwise use the Services for any purpose or in any manner not expressly permitted by Movati. Without limiting the generality of the foregoing sentence, you shall not:

  1. distribute, sublicense, transfer, assign, publish, or otherwise make available the Services or any Platform Content to any third party;
  2. access or use the Services, the Platform, or any Platform Content on behalf of or for the benefit of any third party;
  3. access or use the Services, the Platform, or any Platform Content for any commercial purposes;
  4. collect, aggregate, copy, scrape, duplicate, display or derivatively use the Services or any Platform Content;
  5. use any device including, but not limited to, a frame, border environment or other framing technique to reproduce any portion of the Platform or any Platform Content on another site or platform;
  6. use any data mining, robots or similar data gathering and extraction methods in connection with the Platform or any Platform Content;
  7. violate, plagiarize, or infringe the rights of Movati or third parties including, without limitation, copyright, trademark, patent, trade secrets, rights of publicity or privacy or any other intellectual or proprietary rights;
  8. attempt to undermine the security or integrity of the Platform or otherwise interfere with the proper workings of the Services;
  9. use the Services in any way which may disrupt or impair the Platform, any other systems used for the Platform, or the use of the Platform by other Users;
  10. attempt to gain unauthorised access to any Platform Content or other parts of the Platform other than those to which you have been given express permission by Movati;
  11. violate any applicable law; or
  12. reverse engineer, decompile, decode, or disassemble the Platform or otherwise attempt to derive the source code for the Platform or attempt to gain access to any underlying code used to implement or deploy the Platform (except to the extent this restriction is prohibited by applicable law).

4.5 Additional Terms. Certain services or products that Movati may make available to you through the Platform may be subject to additional terms and conditions. You shall comply with any such additional terms and conditions of which Movati provides you with notice. If there is any inconsistency between such additional terms and conditions and these Terms and Conditions, these Terms and Conditions will prevail to the extent of the conflict.

4.6. Changes to the Services. Movati reserves the right to make changes to the Services, the Platform, and any Platform Content at any time in its sole discretion without notice (and including to remove or reduce Platform Content or to change or reduce or eliminate features, functions, or services).

4.7 Suspension of Services. Movati reserves the right, at its sole discretion, to suspend your access to the Services or to cease providing any of the Services to you at any time if you are, or Movati reasonably believes that you are, in breach of these Terms and Conditions or are otherwise engaging in conduct that Movati considers in its sole discretion to be harmful to Movati.

5. THE PLATFORM

5.1 Availability. The Platform is intended to be generally available seven days per week, 24 hours per day, except for downtime for system maintenance and other reasons beyond Movati's reasonable control. Movati does not guarantee that all or any Platform Content will be backed up or can be accessed at all times, and Movati is not liable to you for any delay or failure by you to access the Services or any Platform Content. Movati reserves the right at its sole discretion to create limits on the use of the Services.

5.2 Security. Movati has implemented security policies and practices that are designed to protect the security and integrity of the Services; however, Movati does not guarantee the security of the Services or the security or integrity of any communications between the you and the Platform.

5.3 Hosting Providers. You acknowledge and agree that Movati may operate the Platform and provide portions of its Services and store content and data (including Platform Content and Membership Information) using services, infrastructure and software provided by third parties ("Hosting Providers"), which may be located in a jurisdiction outside of your jurisdiction. You expressly agree that Movati may share information you provide to Movati (including your Membership Information) with such third party Hosting Providers. You shall comply with any policies and terms of a Hosting Provider that are applicable to you and of which Movati provides you with notice.

6. THIRD PARTY CONTENT

6.1 Third Party Content. Platform Content may include content and materials created by third parties (“Third party Content”), including instructional videos created by third party instructors). The inclusion of any Third Party Content on the platform does not constitute an endorsement by Movati of any such Third Party Content. You acknowledge and agree that all Third Party Content is made available to you on an “as-is” basis and is used and relied on by you at your own risk. Movati has no liability to you for any damage or loss that arises as a result of your use of any Third Party Content.

6.2.Third Party Terms. Certain Third Party Content may be subject to any additional terms and conditions (“Third Party Terms”). You shall comply with any applicable Third Party Terms of which Movati provides you with notice.

6.3 Links to Other Websites. Movati may from time to provide you with links to websites and services provided by third parties. If Movati does so, Movati does not endorse any such third party websites or services and Movati does not guarantee the quality, accuracy, currency, timeliness, reliability or fitness for any purpose of any third party websites or services. If you choose to access any such website or service, you do so at your own risk.

7.1 FEES

7.2 Fees. If you are a Qualified Member, the Services are currently provided to you as part of the services and benefits that Movati offers to its Qualified Members, and there are no fees specifically associated with the Services payable by you to Movati. However, Movati reserves the right in its sole discretion to charge you fees for the Services at any time. Movati will obtain your approval prior to charging you any such fees.

8. INTELLECTUAL PROPERTY

8.1 Movati IP. All rights, title, and interest in and to the Services, the Platform, all Platform Content (including all Third Party Content), including any software, technology, tools, designs, graphics, illustrations, logos and marks used by Movati to provide the Services and all videos included on the Platform (“Movati IP”), are, and will be, owned solely and exclusively by Movati or its licensors, as applicable. Movati reserves all rights not expressly granted to you under these Terms and Conditions, and you will have no title, right, or interest in or to any Movati IP except for the limited rights and licenses expressly granted to you under in these Terms and Conditions. All rights granted to you under these Terms and Conditions to access and use the Services, the Platform, and the Platform Content will terminate on any termination of these Terms and Conditions.

8.2 Feedback. You may provide input, comments or suggestions regarding aspects of the Services, the Platform, and Platform Content (“Feedback). You acknowledge and agree that Movati may use any Feedback without any obligation to you and you hereby grant Movati a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit, or otherwise use such Feedback as Movati in its sole discretion may deem appropriate, without restriction obligation or consideration to you, for any and all commercial or non-commercial purposes.

8.3 Data. Movati may collect or generate data or information (“Services Data”) in the course of providing the Services to you, including data and information collected or generated by the Platform relating to your access to and use of the Services, including usage data and diagnostic information relating to your viewing habits and activities and your use of Platform Content. You acknowledge and agree that: (a) Movati owns, and will own, all rights, title, and interest in and to all Services Data, and (b) Movati may use such Services Data, in perpetuity and notwithstanding any termination of these Terms and Conditions, for any and all purposes (including for marketing purposes and for the purposes of improving Movati’s products and services), without any obligation, restriction, or consideration to you and subject only to applicable laws and regulations. To the extent that the right and title to any Services Data does not automatically vest in Movati, you hereby assign, and agrees to assign, any and all rights you my have in or to any Services Data and to take all actions and execute all documents necessary to effect such assignment.

9. TERM AND TERMINATION

9.1 Term. The term of these Terms and Conditions will begin on the date that Movati notifies you that your registration is complete and will continue until terminated by either Movati or you (the “Term).

9.2 Termination.

  1. You may terminate these Terms and Conditions at any time by making such request by email.
  2. Movati may terminate these Terms and Conditions and terminate your access to the Services for any reason, or for no reason, at any time, with immediate effect, by notifying you by email to your current email or other electronic address on file with Movati.

9.3 Effect of Termination. Upon termination of these Terms and Conditions, you must immediately stop all use of the Services, Platform, and Platform Content. Termination of these Terms and Conditions will not affect either party’s accrued rights or liabilities. Movati may, but will have no obligation, to maintain your Membership Information after termination of these Terms and Conditions. Movati will have no liability for your inability to access any Services or Platform Content after termination of these Terms and Conditions.

9.4 Survival. Notwithstanding the termination or expiration of these Terms and Conditions for any reason, the following Articles and Sections, and any right or obligation of either of the parties which, by its nature, should survive termination or expiration of these Terms and Conditions will survive such termination or expiration: 6 (Privacy), 5.2 (Security), 5.3 (Hosting Providers), 6 (Third Party Content), 8 (intellectual Property), 9.3 (Effect of Termination), 9.4 (Survival), 10 (Risk Management), and 11 (General Terms)

10. RISK MANAGEMENT

10.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOVATI DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

10.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MOVATI PARTIES BE LIABLE TO YOU FOR ANY DAMAGES, LOSSES, EXPENSES, OR ANY LIABILITIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES, THE PLATFORM, OR ANY PLATFORM CONTENT. ALL RISK AS TO THE RESULTS, PERFORMANCE AND USE OF THE SERVICES, THE PLATFORM, AND ANY PLATFORM CONTENT IS ASSUMED BY YOU.

10.3 Limitations Apply. The limitations and exclusions of liability set out in these Terms and Conditions will apply regardless of the form of action or theory of liability, including for breach of contract, tort, negligence, by statute or otherwise, and whether or not foreseeable or Movati is advised of the possibility of such damages. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THESE TERMS AND CONDITIONS ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND MOVATI WOULD NOT HAVE MADE THE SERVICES AVAILABLE TO YOU NOR ENTERED INTO THESE TERMS AND CONDITIONS BUT FOR THE LIMITATIONS AND EXCLUSIONS OF LIABILITY CONTAINED IN THESE TERMS AND CONDITIONS.

10.4 Limitation Period. No action arising out of these Terms and Conditions may be brought by you more than one year after the date on which the cause of action has accrued.

10.5 Indemnification. You agree to indemnify, hold harmless, and defend the Movati Parties from and against any and all liability, loss, claim, damages, expense, or costs (including legal fees), incurred by or made against the Movati Parties in connection with any claim arising from or related to: (a) access to or use of the Services by you; (b) any person’s access to or use of the Services through your Login Credentials (regardless of whether such access or use was authorized by you); (c) any breach or violation of these Terms and Conditions; or (d) any non-compliance with any applicable laws by you. In the event of a claim to which this indemnity applies, you agree: (i) to fully cooperate at your expense as reasonably required by a Movati Party; (ii) that each Movati Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder; and (iii) you shall not settle any matter involving a Movati Party without the consent of the applicable Movati Party.

11. GENERAL TERMS

11.1 Notices. All required notices, or notices which may be provided in accordance with these Terms and Conditions, shall be in writing and shall be duly provided for if the notice is remitted to its addressee by prepaid courier, registered or certified mail, or e-mail, if to Movati, to the address listed on the contact portion of Movati’s website or the Platform, and if to you, to the address set out in your Membership Information. Every notice delivered in the manner provided for in these Terms and Conditions shall be deemed to have been received: when delivered or if by e-mail the first business day after the date received unless the sender receives a notice of delivery failure in which case another permitted method of notice will be used.

11.2 Force Majeure. Movati will not be liable for any delays in or failures to perform any of its obligations under these Terms and Conditions (including providing with the Services) due to causes beyond its reasonable control, including acts of God, your acts or omissions, third party product or service failures, Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power surges or outages, pandemics, epidemics, flood, earthquakes, riot, or war.

11.3 Assignment. You may not assign these Terms and Conditions or your rights and obligations under these Terms and Conditions without Movati’s prior written consent. Movati may assign these Terms and Conditions or any of its rights and obligations under these Terms and Conditions without your consent.

11.4 Governing Law and Jurisdiction. These Terms and Conditions shall be governed and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The parties specifically disclaim the N. Convention on Contracts for the International Sale of Goods. The parties irrevocably submit to the exclusive jurisdiction of the courts of Ontario for the resolution of any and all disputes relating to these Terms and Conditions.

11.5 Entire Agreement. These Terms and Conditions (including the Movati Privacy Policy incorporated in these Terms and Conditions by reference), as amended from time to time, constitute the entire and exclusive agreement between you and Movati with respect to the Services, and supersedes and replaces any other agreements or terms and conditions applicable to your use of the Services.

11.6 Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of these Terms and Conditions, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of these Terms and Conditions shall be valid and enforceable to the extent granted by law.

11.7 Waiver. No delay or omission by a party to exercise any right or power it has under these Terms and Conditions or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.

11.8 Electronic Agreement. A printed version of these Terms and Conditions and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This electronic document, and all other electronic documents referred to or incorporated herein, will be: (a) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; and (b) legally enforceable as a signed writing as against the parties subject to the electronic documents.

11.9 English. It is the express wish of the parties hereto that these Terms and Conditions be drawn up in English. La volonté expresse des parties aux présentes est que ce “Terms and Conditions” soit rédigé en anglais.

11.10 Interpretation. In these Terms and Conditions: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the words “including” or “include” in these Terms and Conditions shall mean “including, without limitation”; (c) the division into separate Articles, Sections and Subsections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions; (d) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; (e) if action is required to be taken on a day which is not a business day then such action shall be made or taken on the next business day; and (f) the parties agree that these Terms and Conditions shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms and Conditions.