TERMS OF USE Please carefully review these Terms of Use, as they contain important information about your legal rights, remedies, and obligations. These Terms of Use (the “Terms of Use”) govern the use of all websites made available by or for Uphill Athlete, Inc. (“Uphill Athlete”, “we”, “us”, “our” or “UA”), as well as all of Uphill Athlete’s platforms, applications, trainings, training tools, and other information made available by us (collectively, the “Services”). In these Terms of Use, the words “you” and “your” refer to the individual, company, entity, or organization access or using our websites and the webpages hosted thereon (the “Site”) and/or Services. To access or use the Site and/or Services, you must first read these Terms of Use and agree to all the terms and conditions contained herein. BY SUBSCRIBING TO ANY SERVICES PROVIDED BY US AND/OR ACCESSING AND/OR USING THE SITES AND/OR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SITES OR SERVICES. By agreeing to be bound by these Terms of Use, you represent and warrant that (i) you have read and understand these Terms of use; and (ii) you agree to be bound by these Terms of Use. If you are agreeing to be bound by these Terms of Use on behalf of any other person or entity, you further represent and warrant that you have full authority to bind your employer, organization, or applicable entity to these Terms of Use. CHANGES TO THE TERMS OF USE. We are constantly working to improve our Services and develop new features to make our Services better for our customers. As a result, we may need to change these Terms of Service from time to time, and we reserve the right to add to, update, or change these Terms of Use at any time in our sole discretion by posting a new version of these Terms of Use to the Sites and/or Services. You should check these Terms of Use for changes each time you access the Sites and/or use the Services, as your continued use of the Sites and Services after we post any additions, updates, or changes to these Terms of Use will constitute your consent to be bound by the new Terms of Use. If you do not agree to any addition, update, or change to these Terms of use, you should not access or use our Sites and Services. PRIVACY POLICY. We have established a Privacy Policy to explain how your information (and the information of any End User as defined below) is collected and used by us. By agreeing to these Terms of Use, you are also agreeing to our Privacy Policy. By agreeing to these Terms of Service, you also acknowledge and agree to the collection, use, sharing, and disclosure of your personal information and data as described in this Privacy Policy, as modified from time to time. You can access our Privacy Policy here: [INSERT LINK to Privacy Policy]. INTENDED USE. The Services and/or Sites are intended to be used by individuals for purposes of [insert purpose statement – e.g. the development of personal fitness goals and trainings]. Your use of the Services and/or Sites for any other purpose or in any other manner is at your own risk. REGISTRATION. To use the Services and/or Sites, you may need to create an account, including a username and password. When you register for an account, you are required to provide information about yourself that is true, accurate, current, and complete in all respects, including your name, address, [sex], [age], [fitness level], [medical conditions we should be aware of], and e-mail address. You are solely responsible for disclosing full and accurate information about yourself. You may not impersonate someone else, create an account for someone else, provide another’s email or create multiple accounts. You may not share your account information with any third party, and you are responsible for maintaining the confidentiality of your account. You are fully responsible for all activities that occur through the use of your account. Should any of your registration information change, please update your account information or notify us immediately. AVAILABILITY. We may modify, update, interrupt, suspend or discontinue the Sites or Services, in each case in whole or in part, at any time in our sole discretion without notice. The Sites and/or Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. We are not responsible for any delays, failures or other damage resulting from such problems. LIMITED LICENSE. Subject to your compliance with these Terms and your timely payment of all fees charged for our Services, we grant you a limited, non-exclusive, non-transferrable, revocable license to access and use the Sites and Services. You acknowledge and agree that you will not access, reproduce, duplicate, copy, sell, re-sell or otherwise exploit for any commercial or any other non-personal purpose the Sites or Services, or any content contained or made available via the Sites or Services, without our express written consent. This limited license immediately terminates if you do not comply with the terms of this paragraph. TERMINATION OF ACCOUNT. We reserve the right, in our sole discretion, to determine whether your use of the Sites and Services is consistent with these Terms. We, in our sole discretion, may suspend, restrict or terminate your use of the Sites and/or Services. RESTRICTIONS ON USE. In connection with your use of the Sites and Services, you represent and warrant to us that you: · are at least 18 years of age; · will not modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Sites or Services or the information made available on them; · will not access, retrieve, scrape, index, download or copy any information contained on the Sites or Services through artificial means, such as spiders, bots, hacking devices or other means; · will not attempt to gain unauthorized access to the Sites or Services, the accounts of other users of the Sites or Services, or other computer systems or networks connected to the Sites or Services, or store or transmit any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs, or send spam or otherwise unsolicited messages in violation of applicable laws; · will not use the Sites or Services in any way that could interfere with our rights or the rights of other users; · will not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Sites or Services, features that prevent or restrict the use or copying of content on the Sites or Services, or features that enforce limitations on the use of the Sites or Services; · will not disassemble, reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Sites or Services, or modify, adapt, create derivate works based upon, or translate the Sites or Services; · will not license, sublicense, sell, rent, assign, distribute, time share transfer, lease, loan, resell for profit, distribute, or otherwise commercially exploit, grant rights in or make the Sites or Services or any content offered therein available to any third party; · will not post any defamatory, illegal, infringing or misappropriated content to the Sites or Services or post otherwise unlawful, unsafe, malicious, abusive or tortious material; and · will abide by all applicable laws. COMMUNICATIONS. You agree that we may communicate with you under these Terms of Use through email, regular mail or by posting any notices on the Sites or Services. You consent to receive communications from us electronically, such as e-mails, texts, or notices and messages on the Sites or Services, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. THIRD PARTY WEBSITES AND SERVICES. Our Sites and Services may include links to other websites or applications (each, a “Third Party Site”). We do not control or endorse any Third Party Site and provide these links as a convenience only. You agree that your use of a Third Party Site is at your own risk and that we are not responsible for the availability or contents of any Third Party Site and in no event shall we, our parent, subsidiaries and affiliates, and their respective officers, directors, employees, agents, representatives, information providers and licensors, and their respective heirs and assigns, be liable for any direct, indirect, incidental, consequential, special, exemplary, punitive or other damages from your clicking or following any links on the Sites or Services, even if informed of the possibility of such damages. INTELLECTUAL PROPERTY. All content and information on the Sites and Services, including, but not limited to, all text, graphics, logos, icons, images, audio clips, downloads, and software are the exclusive property of Uphill Athlete or its licensors and are protected by United States and international copyright laws. Except for the limited license granted herein, these Terms of Use do not transfer from Uphill Athlete to you any of our or third party intellectual property rights, and all right, title and interest in and to the Sites and the Services will remain (as between you and Uphill Athlete) solely with us. The trademarks, service marks, logos, trade dress, graphics page headers, button icons, scripts, and service names (collectively, the “Marks”) included in or made available through the Sites or Services are, unless otherwise identified, the property of Uphill Athlete. The Marks may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us. All other trademarks not owned by us that appear on the Sites or Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. Product names used on the Sites and Services are for identification purposes only and may likewise be the trademarks of their respective owners. No license or right is granted by implication, estoppel or otherwise to any Mark included in or made available through the Sites and Services. NO WARRANTY. THE SITES, SERVICES AND ALL INFORMATION ON OR FROM THE SITES AND SERVICES ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE ASSUME NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS OR FAILURE BY THE SITES OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SITES AND SERVICES AND THEIR OPERATION, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY WARRANTY THAT THE SITES OR SERVICES WILL: (A) MEET YOUR REQUIREMENTS; (B) BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) ANY ERRORS IN THE SITES OR SERVICES WILL BE CORRECTED. YOU AGREE THAT USE OF THE SITES AND SERVICES IS AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE SITES, SERVICES OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SERICES. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF OR INABILITY TO USE THE SITES OR SERVICES OR FROM ANY INFORMATION OR CONTENT ON THE SITES OR SERVICES INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING SIGNED BY OUR DULY AUTHORIZED REPRESENTATIVE EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RESERVATION OF RIGHTS. No other rights are granted except as expressly stated in these Terms of Service, and nothing herein conveys any rights or ownership or license in, or to, the Sites or Services or any underlying software or intellectual property. We own all right, title and interest, including all intellectual property rights, in and to the Services and the underlying software, and any and all updates, upgrades, modifications, enhancements, improvements or derivative works thereof, and in any idea, know-how, and/or program(s) developed by us or our authorized users during the course of performance of the Sites or Services. CONFIDENTIAL INFORMATION. Neither party shall disclose to any third party any information or materials provided by the other party hereunder and reasonably understood to be confidential (“Confidential Information”) without the other party’s prior written consent, except as otherwise expressly permitted under these Terms of Service; provided, however, we may use and disclose your Confidential Information (in accordance with our Privacy Policy) as necessary to provide the Services. The foregoing restrictions do not apply to (i) any information that is in the public domain or already in the receiving party’s possession, (ii) was known to the receiving party prior to the date of disclosure, (iii) becomes known to the receiving party thereafter from a third party having an apparent bona fide right to disclose the information, or (iv) Confidential Information that the receiving party is obligated to produce pursuant to a court order or a valid administrative subpoena, providing receiving party provides disclosing party of timely notice of such court order or subpoena. (unless receiving party is legally precluded from providing such notice). This Section will survive termination or expiration of your subscription to the Sites and/or Services. INDEMNIFICATION. You agree to defend, indemnify, and hold us and all our affiliates, employees, officers, directors, contractors, agents, licensors, successors, and assigns harmless from any and all claims, judgments, awards, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities (including reasonable attorneys’ fees, court costs and expenses) arising out of or relating to (i) your use of the Sites and/or Services in violation of these Terms of Service, (ii) a claim excluded under these Terms of Service, (iii) any actual or alleged breach by you of any representation, warranty, covenant or obligation under these Terms of Service, or (iv) your gross negligence or willful misconduct. Your indemnification obligations under this Section will survive any termination or expiration of your subscription to the Services. GOVERNING LAW. These Terms of Use and the relationship between you and us, including but not limited to claims relating to the Sites and Services will be governed by the laws of the State of Washington, without regard to conflict of law provisions. You agree and consent to the exclusive jurisdiction of the state or federal courts located in Okanogan County, Washington, and waive any defense of lack of personal jurisdiction or improper venue or inconvenient forum. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party will constitute an event of default or breach of these Terms of Service to the extent that such failure to perform, delay or default arises out of a cause that is beyond the control and without negligence of such party, including (but not limited to) natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; failures of telecommunications providers or internet service providers; and failures of third party suppliers, service providers or vendors. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. SEVERABILITY. These Terms of Use are severable. If any provision contained in these Terms of Use is found to be illegal, invalid or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and the illegal, invalid or unenforceable provision shall be deemed modified so that they are legal, valid and enforceable to the maximum extent permitted by law. ENTIRE AGREEMENT. These Terms of Use incorporate by reference any terms or notices contained on the Sites and Services, including but not limited to the Privacy Policy, and contain the entire agreement between you and us regarding the use of the Sites and Services, and the ordering of products through the Sites and Services, and supersede any prior agreement, whether written or oral, between you and us regarding the subject matter contained in these Terms of Use.
PRIVACY POLICY INFORMATION YOU PROVIDE TO US. When you create an account or profile in one of our services, or otherwise use certain services, you may provide personal identifiers, such as your first name, last name, email address, date of birth, phone number, picture, login password, job title and function, address or geographical location, sex, fitness level, workout metrics, and other personal information (the “personal data”). By using our website, applications, or participating in any of the services we provide, you consent to our use of this personal data collected from you, including any data collected from wearable devices owned by you. In connection with (a) creating and maintaining the security of our services, (b) providing background and screening services, (c) fulfilling “know your customer” processes, required for certain payment services, (d) enabling you to make and receive payments, and (e) complying with other various regulatory requirements, you may be required to provide us with information that can be used to verify your identity, such as your social security number, tax identification number, images of your driver’s license, government issued ID, passport, national ID card, birthdate, and other authentication information. To use certain of our payment services, or to make payments to us, you may be required to provide us with financial information, such as your bank account number, online bank account login, and credit card information. We may also capture additional information when you make payments, such as card type, transaction type, and payee information. When you participate in our communities (help centers, blogs, forums, etc.), you may choose to disclose and provide many different types of personal information that can be used to identify you, your location, your job function, and more. You may provide us with personal information when you fill in forms, respond to surveys, participate in promotions or research opportunities, communicate with our customer service teams, or use other features of our services. INFORMATION WE COLLECT. When you access our websites and applications or participating in any of the services we provide, you agree to allow us collect device information that can be used to identify you, the personal data provided by you, and additional data relating to your device, including wearable electronic devices. These identifiers may include IP address, hardware and software information, browser type, device event information, crash data, cookie data, and the pages you have viewed or engaged with before or after accessing our websites or services. We may collect details about how you use our websites or services, such as content accessed, time viewed, and links clicked. When you use certain of our services, we may collect information about your precise or approximate location as determined through your IP address, GPS, or nearby devices (Wi-Fi access points, cell towers, etc.). When you visit our websites or services, we use common technology tools to collect and store information, such as cookies, pixel tags, local storage (such as browser web storage or application data caches, databases, and server logs). [Individuals under the age of 18 are not permitted to use our services and we do not intentionally collect information on individuals under 18 years of age, regardless of their residency. Incidental exposure to this information may be possible if, for example, our customers upload this information to one of our services or it is inadvertently captured by our marketing organization. CONFIRM]. HOW WE USE YOUR INFORMATION. We do not use or reference your information or personal data except to provide, improve, develop, and market our services. We may also use your information and personal data to inform you and other users of available services we offer, to send you marketing, advertising and other information that we think may be of interest to you. WHO WE SHARE YOUR INFORMATION WITH, We do not share your information or personal data with anyone except as is necessary to provide, improve, develop, and market, our services. We do not and will not sell your information or personal data. Some examples of when and why we share your information or data follow. 1. Service Providers. We use a variety of third-party service providers to help us provide our services, and these third parties may require your information or data for such purposes. For example, service providers may help us: (a) verify your identity or authenticate your identification documents, (b) check information against public databases, (c) conduct background checks, fraud prevention, and risk assessment, (d) perform product development, maintenance and debugging, or (e) provide customer service, payments, or insurance services. We have written agreements with all such third parties and they are not permitted to use your information or data for any purpose other than to deliver the relevant services in a professional manner, and consistent with their legal, regulatory and other obligations. For clarity, we do not and will not share any personally identifiable or sensitive information with third parties for unknown reasons. 2. Legal and Regulatory Disclosures. We may disclose your information or data to courts, law enforcement, governmental authorities, tax authorities, or third parties, if and to the extent we are required or permitted to do so by law or if such disclosure is reasonably necessary: (a) to comply with our legal obligations, (b) to comply with a valid legal request or to respond to claims asserted against us, (c) to respond to a valid legal request relating to a criminal investigation or alleged or suspected illegal activity or any other activity that may expose us, you, or any other of our users to legal liability, or (d) to enforce and administer our Terms of Service or other agreements with users. Such disclosures may be necessary to comply with our legal obligations, for the protection of your or another person’s interests or for the purposes of keeping our services secure, preventing harm or crime, enforcing or defending legal rights, or facilitating the collection of taxes. 3. Sharing With Your Consent. Where you expressly consent or request, we share your information and data when you authorize a third-party service or website to access your account with us. 4. Sharing between Users. To help facilitate the use of our services among your users, we may need to share certain information with other users that you authorize to access and use your account. For example, account login information and other certain personal information may be visible by all. 5. Public Information. Some of our services let you publish information that is visible or available to the public. For example, if you use our website services, you may elect to include certain of your information or data on websites available to the public at large. 6. Corporate Affiliates. To enable or support us in providing you services, we may share your information and data within our corporate family of companies. 7. Business Transfers. If we are involved in any merger, acquisition, reorganization, sale of assets, bankruptcy, or insolvency event, then we may sell, transfer or share some or all of our assets, including your information and data in connection with such transaction or in contemplation of such transaction. COMMUNICATIONS Special Offers, Updates and Research. We may occasionally send you information regarding our services, including educational offers and our newsletter. We also may occasionally contact you, your customers or other third parties related to you to inquire how you or such individuals use our services and how we might improve our services. We typically use names, email addresses and telephone numbers to send these communications and make these contacts. Out of respect for your privacy, if you no longer wish to receive our newsletter and promotional communications, or if you do not wish for us to contact you, your customers or related third parties for our own internal research purposes, you may opt-out of receiving such communications by following the instructions included in each newsletter or communication. Note that there are certain email communications that you cannot opt-out of as a user of our services, as these notices are required for the continued optimal functionality of our services. Public Forums. We may provide public forums such as bulletin boards, blogs, or chat rooms on our websites or within our services subject to certain terms of use. These forums are provided as a service to you and other users to help exchange ideas, tips, information and techniques related to our services. As discussed above, we may collect your information revealed in these forums; however, any information you choose to submit may also be read, collected, or used by others and may be used to send you unsolicited messages. We are not responsible for the personal information you choose to submit in these forums. EXTERNAL LINKS Our websites and services may contain links to third party websites. These third-party websites maintain their own policies regarding the collection and use of your information. We assume no responsibility or liability for the actions of such third parties with respect to their collection or use of your information. We encourage you to read the privacy policies of every website that you visit, including those you may reach through a link on our websites or in our services. We encourage you to be aware when you leave our websites or services and to read the privacy statements of each and every website you visit that collects your information. JURISDICTIONAL SPECIFIC PRIVACY REGULATIONS Supplement for California Users Uphill Athlete is required to provide additional notice to End Users and Customers residing in California under the California Consumer Privacy Act and the California Privacy Rights Act (together, the “California Privacy Law”). We have included this California-specific information below. Personal Data. Within the past 12 months we collected the categories of personal data listed abpve from California residents consistent with the terms of this policy. In addition, we may collect from individuals: (i) the personal information categories listed in the California Customer Records statute (Cal. Civ. Code § 1798.80(e)) that is not already listed above, including insurance policy number, education, employment history, and medical information; and (ii) protected classification characteristics under California or federal law, include but not limited to race, national origin, religion, marital status, medical condition, disability, sexual orientation, veteran or military status, and genetic information. Sources. Uphill Athlete obtains the categories of personal data listed above from the following categories of sources: (i) Directly from you, e.g. from information you provide through Uphill Athlete’s website, applications, and services, and through any payments or transactions, or through any correspondence, such as when you request to receive information or support; (ii) Indirectly from you, e.g. from observing your actions on our Sites through the use of automated data collection tools or through our Customers acting on your behalf if you are an End User; or (iii) from our third-party service providers, e.g., through their independent collection efforts, or through your interactions with third-party platforms and partners, including through our integrations with them. Disclosure of Information: We may disclose your personal data as described in this Privacy Policy. Retention. We may retain your personal data as described in this Privacy Policy. California Consumer Rights. Subject to certain exceptions, as a California resident, you have the right to: - Request to know and/or access the personal data we have collected about you, including specific pieces of the personal data we have collected about you.
- Request deletion of personal data.
- Request information about the personal data about you that we have shared (as such term is defined under California Privacy Law) to third parties.
- Request the correction of inaccurate personal data.
- Request the categories of your personal data disclosed for a business purpose.
- Request information about the categories of your personal data about you that we have shared or sold within the past 12 months and the categories of third parties to whom your personal data was shared or sold.
- Opt-out of the sale or sharing of your personal data.
Other California Privacy Rights. California Civil Code Section 1798.83 permits California residents to request and obtain a list of what personal data we disclosed to third parties for direct marketing purposes in the preceding calendar year and the names and addresses of those third parties. Requests may be made only once a year and are free of charge. Under Section 1798.83, California residents are entitled to request and obtain such information, by contacting us at the details provided below. Exercising your California consumer rights. Should you wish to request the exercise of your rights as detailed above with regard to your personal data, we will not discriminate against you by offering you different pricing or products or by providing you with a different level or quality of products, based solely upon this request. Please note that you are limited by law in the number of requests you may submit per year. In some instances, we may decline to honor your request. For example, we may decline to honor your request if we cannot verify your identity or confirm that the personal data that we maintain relates to you. To verify your requests, we ask that you provide information required to match the request with the consumer about whom information has been collected or utilize the authentication practices for your password-protected account. We verify requests by matching information you provide to information that we maintain in our records. We will only use personal data provided in a verifiable consumer request to verify the requestor’s identity or authority to make the request. In other instances, we may decline to honor your request where an exception under California Privacy Laws applies, such as where the disclosure of personal data would adversely affect the rights and freedoms of another consumer. Authorized Agent. You also have the option of designating an authorized agent to exercise your rights on your behalf. To authorize an agent to act on your behalf with respect to the rights contained in this Privacy Policy, we may require proof from the agent that you have provided the authorized agent written permission to do so, and we may require that you verify your own identity directly with us. If you have provided the agent with power of attorney, that may be sufficient. Contact. If you have any questions or comments about this Privacy Policy, how we collect or use your Personal Information, or to exercise any applicable rights, please contact us at: [INSERT email address and mailing address] Supplement for European Union Users. We exclusively market and sell our services to United States-based organizations and individuals. Even though we do not intentionally collect information about residents of the European Union (“EU”), some EU residents’ data may be inadvertently collected through marketing channels or by virtue of our customers’ legitimate use of our services. Collection and storage of any EU resident’s data by us is minimal and incidental. No such data is used for marketing or any other purpose. Notwithstanding the foregoing, if you are an EU resident and would like to request that your data be securely removed from our systems, however collected, please send an email with proof of EU residency to us. We will remove all relevant data, so long as that removal is technically feasible, does not impact the legitimate accounting or business practices of our customers, and does not violate other regulatory or legal standards with which we must comply. We will also cooperate with our customers in good faith to address any requests they receive or that may impact them directly.
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