Disclaimer and Terms of Service 1 - Introduction 1. These Terms of Service apply to the use of iBody Academy Inc/iBodyHEP (including operational name as iBody HEP) Service (as defined below). By using the Service, you agree to the Terms of Service and enter into an agreement with iBody Academy (hereinafter “Agreement”). If you do not wish to agree to the Terms of Service, you cannot use the Service. All services provided by iBodyAcademy and iBodyHEP (operating name) will hereinafter be referred to as “iBody Academy Inc.” 2. iBody Academy Inc. is a corporation existing under the laws of Canada, having its registered office in Newmarket, Ontario, Canada L3X 1V7. 3. We advise you to read these Terms of Service carefully so that you are aware of your rights and responsibilities when using iBody Academy Inc. Service. Questions about the Terms of Service should be sent firstname.lastname@example.org.
2 - General 1. These Terms of Service apply, to the exclusion of your terms and conditions, to all agreements between you and iBody Academy Inc. and every use made of the Service via your Account. 2. iBody Academy Inc. reserves the right to amend or supplement these Terms of Service at any time by posting an updated set of terms and conditions to the Website. The amended or supplemented Terms of Service will be brought to your attention by email to the address registered with your Account and by notice on the Website before the date on which such updated terms and conditions are due to come into effect. If you continue to use the Service after that date, you irrevocably accept the amended or supplemented Terms of Service. If you do not agree to the amended or supplemented Terms of Service, your only option is to terminate the Agreement in accordance with article 9. 3. Any additions to and/or deviations from these Terms of Service whether on a temporary or permanent basis are only valid when confirmed in writing by iBody Academy Inc. acting by an authorized officer such as a director or senior manager.
3 - Service and availability 1. iBody Academy has developed a platform, called iBody HEP, which enables healthcare providers to manage home exercise programs for their patients, including management of the patients’ compliance with the exercise program and the exchange of exercise program templates with other clients of iBody HEP (hereinafter “Platform”). The Platform is made accessible by iBody HEP through the Website (hereinafter “Service”). To obtain access to the Service, you must have a registered account (hereinafter “Account”). 2. Subject to your full and continued compliance with all obligations pursuant to these Terms of Service, iBody Academy Inc. grants you a limited, personal, revocable, non-exclusive, non-sub-licensable and non-transferable right to use the Service, including the Platform for the above purposes (but not further or otherwise). 3. iBody Academy Inc. will make reasonable efforts to provide the Service with due care. You accept that the Service, including the Platform, only contains the functionalities and other characteristics as described in the current documentation as set out at the moment of your use (“as is” and “as available”). Each and every use of the Service is at your own risk and responsibility. iBody Academy Inc. does not warrant that the provision of the Service will be uninterrupted or error-free and iBody Academy Inc. does not accept responsibility for any part of the service provision infrastructure (including without limitation the internet) which is outside its reasonable control. 4. iBody Academy Inc. is at all times entitled, without in any way becoming liable to you: - to make procedural and technical alterations and/or improvements to the Platform and/or the Service; and - to temporarily discontinue or limit the Service or your Account if, in its view, this is necessary, for example for purposes of preventive, corrective or adaptive maintenance. iBody Academy Inc. will notify you of the temporary unavailability or restricted use of the Service insofar and as soon as reasonably possible.
4 - Account 1. To use the Service, you must create an Account by following the registration process on the Website. 2. Upon registration of the Account you will set your user name and unique password (together “identifiers”) in order to obtain access to the Account. You are responsible for keeping the identifiers secret. As soon as you know or have reason to suspect that the identifiers are no longer secret, or that the Account is being abused, you must notify iBody Academy Inc. immediately and take all necessary steps to prevent unauthorized access including changing relevant identifiers and taking other security measures as recommended by your infrastructure provider. 3. You are not permitted to: - provide information during registration that is not accurate, complete and up-to-date; - create more than one Account; - create an Account for another natural person or legal entity; - share an Account or in any other way provide access to the Account to another natural person or legal entity; or - create an Account if you are younger than 18 years of age. 4. In the case of a patient, you may download from the Service your exercise programs and account details strictly for your personal, non-commercial use only, provided you keep intact all copyright and other proprietary notices. 5. In the case of the healthcare provider, you may download from the Service your patient’s exercise program and compliance history strictly for the purpose of maintaining your patient’s records and must not sell, redistribute or use for any other purpose. You may not use any means for the export and/or download of your patient’s exercise program and compliance history, other than the means expressly provided for such purpose by iBody Academy Inc.
5 - Your obligations 1. In using the Service, you are not permitted to perform any acts as listed below: - make content (including all information, data or material such as exercise programs (hereinafter “Content”)) available which, at the discretion of iBody Academy Inc., is discriminatory or is otherwise deemed hurtful, offensive or inappropriate; - deal with personal data, other than in compliance with applicable law; - make Content available which contains viruses, Trojan horses, worms, bots or other software which can cause any interference, loss or damage to the Platform or any data or make it unusable or inaccessible or delete it, or which can appropriate it or which is intended to circumvent technical protection measures of the Service, the Platform and/or the computer systems of iBody Academy Inc; - make Content available which is directed at individuals (including patients) younger than 18 years of age, unless there is prior consent of the parents or guardians of such individuals; - make or transmit any unwanted or unsolicited material or Content (spam); - make Content available which could prejudice the interests and reputation of iBody Academy Inc. 2. iBody Academy Inc. reserves the right, without prior notice, to abridge, alter, refuse and/or remove any Content in its absolute discretion and liability. 3. In the case of the healthcare provider, you may not create home exercise programs for more patients than agreed upon for your Account. The applicable limitation on the number of patients, if any, will be mentioned on the Website prior to the conclusion of the Agreement. 4. Breaches of this article 5 may lead to suspension or termination of the right to use the Service and iBody Academy Inc. shall in any case be able to claim full damages for any breach of this article 5.
7 - Payment 1. If you are a patient, there are no fees payable to iBody Academy Inc. for using the Service, other than any fee applicable to downloading any applications from any app store. 2. If you are a healthcare provider, you shall pay to iBody Academy Inc. the agreed fees, as mentioned on the Website (“Healthcare Provider Fees”). 3. All Healthcare Provider Fees are in the currency as shown on the subscription page and exclusive of all taxes, levies, or duties imposed by taxing authorities including without limitation taxes. 4. iBody Academy Inc. is entitled to change its Healthcare Provider Fees at any time by email notice to you. The changed fees will become applicable to you from commencement of your next subscription period (month or year). 5. All Healthcare Provider Fees are due in advance for the entire subscription period (month or year) and shall be payable in advance by credit or debit card or direct debit. iBody Academy Inc. shall charge the amounts due through your preferred method as indicated on the Website during your registration, and reserves the right to automatically charge the next and any subsequent period’s Healthcare Provider Fees without notice to you unless written cancellation of your Account is received from you not less than 10 days prior to the end of the current subscription period. In any event, payments must be made 6 days before the end of the subscription period. 6. In the case of a healthcare provider, if you fail to provide full and timely payments, you will immediately be in default without any advance demand or notice of default being required. From the time of default: - iBody Academy Inc. may immediately terminate or suspend your access to, and use of, the Service, in whole or in part, including access to the Platform by your patients; - you owe iBody Academy Inc. interest equal to the maximum rate permitted by law from (and including) the due date of payment up to the date of payment in full with interest; and - iBody Academy Inc. may decide to refer the debt for collection, in which case all costs incurred by iBody Academy Inc. in connection with the late payments will be charged to you. These costs are estimated to come to at least 10% of the amount of the invoice with a minimum of $100, excluding taxes. 7. Complaints regarding (parts of) the Service or the invoice do not suspend your payment obligation. 8. To the maximum extent permitted by law, the Service is provided on a non-refundable basis. There will be no refunds or credits for partial months of Service, refunds for months of Service unused with an activated Account or for unauthorized use of an Account. None of the foregoing restricts your rights under any Statutory Warranties.
8 - Intellectual Property Rights 1. The intellectual property rights - including but not limited to copyrights, database rights and trade name rights (hereinafter “IP rights”) - in relation to the Service, including the Platform are held by iBody Academy Inc. or its licensors. Nothing in the Terms of Service is intended to entail any transfer of IP rights to you. 2. You retain all IP rights on the Content you provide through the Service. By making available or uploading Content to the Service you automatically grant iBody Academy Inc. a cost-free, worldwide, irrevocable, sub-licensable and transferable right to use this Content insofar as is related to the provision of the Service. 3. Save to the extent that it is allowed by mandatory law, you may not reproduce or decompile the Platform or apply reverse engineering to it. Furthermore, removal and/or circumvention of security measures or technical limitations (to use) of the Service and/or the Platform is not allowed.
9 - Term and Termination 1. You agree that your use of the Service is for a definite period of time, either a month or a year (initial period). After the initial period has lapsed, your right to access to use the Service will automatically be renewed for the same period of time (month or year), subject to these Terms and Conditions. 2. You can terminate your Account and access to the Service at any time within your Account settings. If you are a healthcare provider and there are exercise programs that extend beyond the current subscription period, you must manually edit the programs of these patients to end within the current subscription period before you can terminate your Account and access to use the Service. Notwithstanding the foregoing, if you are a patient, your access to the Platform will cease upon your healthcare provider’s access to the Service ceasing. 3. If you are a healthcare provider and you terminate 10 days or more before the end of the current subscription period, your cancellation will take effect at the end of the current subscription term and you will not be charged for the following subscription period. If you terminate less than 10 days before the end of the current subscription period, your cancellation will take effect at the end of the next subscription term and fees will continue to be due and payable for the next subscription term. 4. iBody Academy Inc. has the right to immediately discontinue or to (temporarily) suspend its Service or to terminate the Agreement, notwithstanding iBody Academy Inc. other rights and remedies, including its right to claim damages: - if you breach your obligations under the Agreement and/or the Terms of Service; or - in the event you go bankrupt or are granted a suspension of payments, as well as in the event your business is closed down or liquidated. 5. In the event the Account is terminated, you will not receive any refunds as a result of termination. 6. Upon termination of the Agreement, if you are a healthcare provider, iBody Academy Inc. shall keep all Content available to you for a period of 30 days after the end of the Agreement. You will be able to use the Service during this month insofar as is necessary for the exporting of your Content. You may not add any Content. After this period, iBody Academy Inc. shall make your Account inaccessible to you. iBody Academy Inc. will not be obliged to provide any Content or other information to you or convert or export such information. This clause is not applicable where your access to the Service is terminated as a result of a breach of your obligations under these Terms of Service. 7. After termination of a healthcare provider, for whatever reason, the patients shall not be able to access any exercise programs assigned by that healthcare provider. iBody Academy Inc. shall still have the right to use the Content you provided during the Agreement as set out in article 8 insofar as you shared the Content with other clients of iBody Academy Inc.
10 - Liability 1. To the fullest extent permitted by law, iBody Academy Inc. liability under any guarantee, condition or warranty (including, without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, under any legislation or implied into these Terms of Service by any legislation (Statutory Warranties) is hereby excluded. Where iBody Academy Inc. is liable under any Statutory Warranties, and any legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such Statutory Warranties, iBody Academy Inc’s liability for any breach of such Statutory Warranties shall be limited, at iBody Academy Inc’s option, to one or more of the following: - if the breach relates to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the cost of replacing the goods or of acquiring equivalent goods; or the cost of having the goods repaired; and - if the breach relates to services: the supplying of the services again or the cost of having the services supplied again. You acknowledge and agree that reliance by iBody Academy Inc. on this limitation of liability is fair and reasonable in all the circumstances. 2. To the maximum extent permitted by law, iBody A cademy Inc.shall not be liable for any loss (including direct and indirect loss and damage), howsoever caused (including through our negligence), suffered or incurred by you arising from or in connection with: - your access to, or use of, the Service, any Content (including iBody Academy Inc. materials, user posted content and exercise programs) or any linked site; - any decision or action taken by you in reliance on any Content (including iBody Academy Inc. materials and user posted content); - any error or defect in the Service; or - any contravention by any other user of any applicable laws. 3. Notwithstanding this article 10, if iBody Academy Inc. is liable for damage to you whether in contract, tort or on any legal theory whatsoever, iBody Academy Inc. shall be liable solely for direct damage suffered by you up to an amount not exceeding that of your payments to iBody Academy Inc. for 125% of last 12 months Service preceding the event that caused the damage or $5000 whichever shall be higher. 4. Direct damage shall solely mean: - Direct damage to physical property - Direct cost of obtaining any replacement service for the Services or spent in ensuring that iBody Academy Inc.performance conforms to these Terms of Service, in each case, during the period - Up to the date of any termination of the Agreement by you; or - Up to the date of the earliest expiry date of any period during which the Services were being provided to you whichever shall first occur. - Wasted costs and expenses incurred by you in ascertaining the cause and scope of any damage falling within these Terms of Service 5. Your right to claim damages against iBody Academy Inc. whether in contract, tort or on any legal theory whatsoever is dependent upon your informing iBody Academy Inc. promptly as soon as you become aware of any facts or matters giving rise to such claim and in any event within three weeks of becoming aware of such facts and matters. 6. Nothing in this clause shall operate to exclude or limit the liability of either party: - for death or personal injury caused by that party’s negligence; - for fraud or fraudulent misrepresentation; or - for any other loss or damage which may not be validly excluded or limited by law.
11 – Information on the Service 1. We do not warrant or represent the accuracy, completeness or suitability for your intended use of any information (including, without limitation, any Content) on the Service. You are responsible for the use of any such information and you should make your own enquiries to check if the information is accurate, complete and suitable for your intended use. 2. All exercises available on the Service are demonstrations only. You acknowledge that healthcare providers are responsible to ensure that any exercises and exercise programs created for a patient are appropriate for that patient. 3. iBody Academy Inc. does not endorse or recommend any information on the Platform or made available through the Service. All information contained on the Platform and through the Service is for personal use only and may not be sold, redistributed or used for any commercial purpose. 4. If you are a patient, there is always the possibility of physical injury and/or death when participating in any exercise or exercise program. If you feel discomfort or pain, you should immediately stop the activity causing such discomfort or pain and contact your healthcare provider or an ambulance in the case of a medical emergency. By using the Service, you represent that you have fully informed your healthcare provider of your medical history and existing condition and have received their consent to participate (and continue to participate) in the programs and exercises available to you on the Service. 5. The Service may from time to time contain links to internet sites maintained by third parties. Such links shall be provided for your convenience and are not under iBody Academy Inc’s control. iBody Academy Inc.is not responsible for the contents (including the accuracy, completeness or suitability for your intended use) of any linked site or any link contained in a linked site. iBody Academy Inc. does not endorse any information on linked sites or any associated organisation, product or services. 6. At the healthcare provider’s request and with the consent of the patient, we will transfer a patient’s records to the patient’s new healthcare provider using the Service. Once a transfer occurs no further access to the patient’s records will be available to the transferring healthcare provider. It is the responsibility of the transferring healthcare provider to ensure that it maintains its records relating to the patient in accordance with law.
12 - Warranties and indemnifications 1. iBody Academy Inc. does not guarantee: - that the Service shall be available to you at all times and without interruptions, faults or disturbances; - that the Service shall be effective or the use of the Service shall lead to certain results; or - that the information provided through the Service shall be accurate, up to date and complete. 2. iBody Academy Inc. is not responsible for (and expressly disclaims all liability to you): - the purchase and/or the proper operation of your infrastructure; - loss, damage, inaccuracy and/or incompleteness of any Content; - transmission errors, malfunctions or non-availability of any computer, data or telecom facilities, including the internet; - any unauthorized use or attempted use of the Service; - making backup copies of any Content; or - the management, including checking the settings, the use of the Service and the manner in which the results of the Service are used. 3. iBody Academy Inc. may provide application programming interfaces to allow integration of the Service with other services and platforms. iBody Academy Inc. is not responsible for (and expressly disclaims all liability to you) for such other services and platforms which the Service integrates with or which integrate with the Service. 4. You guarantee that you will not use the Service and/or the Platform in a way that: - infringes the rights of iBody Academy Inc. or third parties, including but not limited to IP Rights or rights in relation to the protection of privacy; - is contrary to any current legislation or regulations; or - is contrary to any provision in these Terms of Service. 5. You agree to indemnify iBody Academy Inc. against all costs, claims, damages and expenses which iBody Academy Inc. incurs as a result of - any claim by any third party based on any infringement or alleged infringement of such party’s IP-rights; - any claim by any third party based on breach of privacy or wrongful use or disclosure of personal data or breach of any law relating to data or records including but not limited to your obligations in respect of the privacy of your patients as set out in article 6 above; and - any claim by any third party in respect of any personal injury or damage to physical property suffered by them, to the extent that the same arises out of any wrongful or negligent act or omission by you in the course of your use of the Platform or receiving the Service or making use of the Service to provide services to others. 13 - Miscellaneous 1. iBody Academy Inc. may assign or subcontract rights and obligations arising from these Terms of Service or the Agreement to third parties and will notify you of this. You are not permitted to assign or purport to assign to third parties any right derived from the Account without iBody Academy Inc.’s prior written consent which iBody Academy Inc. may grant or refuse in its sole discretion. 2. If iBody Academy Inc. waives, in whole or part, any rights available to us under these Terms of Service on any occasion, this does not mean that those rights will automatically be waived on any other occasion. 3. If any provision of these Terms of Service are held to be invalid, unenforceable or illegal for any reason, it is to be read down to give it as much effect as possible, or if it is not capable of having any effect at all, it is to be severed from this Agreement, in which case, the remainder of these Terms of Service shall nevertheless continue in full force. 4. These Terms of Service and the use of the Service are governed by the laws of England and Wales. 5. To the extent that national or international rules of law do not prescribe otherwise as mandatory, any disputes that arise or are related to agreements concluded subject to these Terms of Service, or arise therefrom, will solely be submitted to the courts of England and Wales which will have exclusive jurisdiction with respect to any matters raised under these Terms of Service.