1. General Terms
1.1 - Agreement.
This Agreement is a binding legal agreement between you and the applicable Cloud Gym Entity indicated in Section 14.4 below (Cloud Gym, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Cloud Gym are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms.
This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial. For clarity, this Agreement does not apply to use of the Cloud Gym App. That has a separate agreement, which is accessible through the Cloud Gym App.
1.2 - Changes to the Agreement.
We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the Agreement indicates when it was last changed.
1.3 - Supplemental Terms.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
2. Services
2.1 - Software Services.
Cloud Gym will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term (defined below), the Software Services will meet the service levels specified in the Service Level Agreement (“SLA”).
2.1.2 - Changes to Services.
Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (a) in connection with a Force Majeure event (as described in Section 14.9), (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime as provided in the SLA. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
2.2 - Third Party Offerings.
Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply Cloud Gym’s endorsement of or affiliation with the provider. Cloud Gym does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. Cloud Gym has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting Cloud Gym to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
2.3 - Support Services.
As part of the Services you will have access to Cloud Gym’s standard support services described at https://cloudgym.freshdesk.com/ (or such other URL as specified by Cloud Gym), as may be updated by Cloud Gym from time to time. For an additional fee, you may purchase Professional Services as described at https://cloudgym.io/ (or such other URL as specified by Cloud Gym), as may be updated by Cloud Gym from time to time.
2.4 - Recently Acquired Offerings.
As an administrative courtesy to you, we may offer Recently Acquired Offerings to you through this Agreement before fully integrating, testing, and improving such offerings to meet our standards, which may take up to twelve (12) months. All representations and/or warranties made by us in this Agreement do not apply to such Recently Acquired Offerings.
2.5 - Free, Trial and Beta Services.
Cloud Gym may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) Cloud Gym may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. Cloud Gym will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.
2.6 - Professional Services Terms.
Additional terms specific to the procurement of Professional Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.7 - Branded Mobile App Terms.
Additional terms specific to the procurement of the Branded Mobile App apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.8 - Hardware Terms.
Additional terms specific to the procurement and use of heart rate monitors, receivers, payment enabling, and other similar hardware apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.9 - Smart Payment Terminal Terms.
Additional terms specific to the use of Smart Payment Terminals apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.10 - Payment Processing.
Cloud Gym offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
At Cloud Gym's sole discretion, you may be offered Payment Processing Services provided by Stripe (Cloud Gym Payments”). Cloud Gym Payments are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”) and subject to certain fees and surcharges communicated to you during the enrollment process and as may be updated by Cloud Gym from time to time. By enrolling in Cloud Gym Payments, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Cloud Gym enabling Payment Processing Services through Stripe, you agree to provide Cloud Gym accurate and complete information about you and your business, and you authorize Cloud Gym to share it and transaction information related to your use of the Payment Processing Services provided by Stripe pursuant to our Privacy Policy. To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from funds payable to you arising from the settlement of card transactions through Cloud Gym Payments. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your account for any amounts owed to us. In the event a consumer chargeback or dispute occurs, you may be charged up to fifteen dollars ($15) per occurrence by Cloud Gym. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest. Additionally, we may require a personal guaranty from a principal of a business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Cloud Gym by you. Such communication may be made by Cloud Gym or by anyone on its behalf, including but not limited to a third party collection agent.
Cloud Gym may offer special pricing, credits, and/or discounts to you or your Affiliates for the Services contingent upon timely procurement, and continued material usage, of the Payment Processing Services and/or Cloud Gym Payments. In the event you or your Affiliate stop utilizing the Payment Processing Services and/or Cloud Gym Payments, Cloud Gym may, in its sole discretion, revoke the special pricing, credits, and/or discounts being applied to the Services.
3. Your Responsibilities
3.1 - Liability for Affiliates and End Users.
You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Cloud Gym, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
3.2 - Data; Unauthorized Access; Maintaining Networks.
You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify Cloud Gym promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
3.3 - Restrictions on Use.
You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Cloud Gym grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Cloud Gym reserves the right to revoke these permissions at any time and without notice.
3.4 - Cardholder Data.
You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
3.5 - User Names and Passwords.
Cloud Gym may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Cloud Gym. You, and not Cloud Gym, are responsible for any use or misuse of user names or passwords associated with your account.
3.6 - Consent.
You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.
4. Fees and Payment
4.1 - Software Services Fees.
Unless otherwise stated on an Order Form, fees for the Software Services (“Subscription Fees”) are set forth on the applicable Website(s).
4.2 - Change in Subscription Fees.
Unless otherwise specified in an Order Form, the Subscription Fees during a Renewal Term (defined below) will be updated to the pricing set forth on the applicable Website when each Renewal Term begins. If You have an Order Form, Cloud Gym may increase any fees specified in an Order Form, provided the increase will not become effective until the subsequent Renewal Term. Prices are subject to change for those Services you have elected not to purchase or that are otherwise not identified in the Order Form. Cloud Gym may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee.
4.3 - Payment Terms.
You agree to pay the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide Cloud Gym with valid and updated credit card information or another form of payment acceptable to Cloud Gym. If you provide credit card information, you represent that you are authorized to use the card and you authorize Cloud Gym to charge the card for all payments hereunder. By submitting payment information, you authorize Cloud Gym to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Cloud Gym for purposes of acknowledging or completing any payment.
4.4 - Overdue Charges.
Any amounts not received by the applicable due date may accrue late interest at the lesser of either (a) 1.5% of the outstanding balance per month, or (b) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Cloud Gym within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and Cloud Gym will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 8.2.
4.5 - Payment Errors.
If you believe a payment has been processed in error, you must provide written notice to Cloud Gym within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute ("Payment Error Notice"). If the Payment Error Notice is not received by Cloud Gym within such thirty (30) day period, the payment will be deemed final.
4.6 - Taxes.
Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Cloud Gym is legally required to pay or collect any Taxes on your behalf, Cloud Gym will invoice you and you will pay the invoiced amount. You acknowledge and agree that we may make certain reports to tax authorities (e.g., 1099 forms) regarding transactions that we process and merchants to which we provide Payment Processing Services are provided. For clarity, Cloud Gym will be solely responsible for taxes assessed on Cloud Gym based on its income.
5. Intellectual Property Rights
5.1 - Cloud Gym Intellectual Property.
Cloud Gym or its affiliates own all right, title and interest in and to the Services, the Cloud Gym Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Cloud Gym and its affiliates reserve all rights, title and interest in and to the Services, the Cloud Gym Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and Cloud Gym, all Cloud Gym Marks are owned by Cloud Gym or its affiliates. You agree not to display or use any Cloud Gym Marks in any manner without Cloud Gym’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
5.2 - License Grant to You.
Subject to the terms and conditions of this Agreement, Cloud Gym hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Cloud Gym in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
5.3 - License Grant to Cloud Gym.
You hereby grant to Cloud Gym and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Cloud Gym’s or its affiliates’ business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with Cloud Gym’s business, and (z) for Marketing Services. Cloud Gym agrees that any use by Cloud Gym of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Cloud Gym or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
6. Data Ownership and Use
6.1 - Your Data.
As between you and Cloud Gym, you own all right, title and interest in Your Data. You hereby grant to Cloud Gym a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing Cloud Gym’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to Cloud Gym that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
6.2 - Cloud Gym Data.
Notwithstanding Section 6.1, all right, title and interest in any data or information collected by Cloud Gym independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information Cloud Gym obtains about End Users through the Cloud Gym App (whether the same as Your Data or otherwise), will be solely owned by Cloud Gym (collectively, Cloud Gym Data”).
6.3 - Aggregated Data.
You agree Cloud Gym owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Cloud Gym or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
6.4 - Personal Information.
Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that Cloud Gym may process Your Data for the purpose of providing the Services and related functions, such as billing and customer or End User support, as well as to send direct marketing communications to your representatives’ or End Users, data science and product or service improvement and reporting. You represent and warrant that You are authorized to process Your Data and make such data available to Cloud Gym for uses as set out in the Agreement and Privacy Policy, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding Cloud Gym’s ability and right, to which You agree, to request consent, and provide notice and its Privacy Policy separately to individuals).
6.5 - HIPAA.
The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") imposes rules to protect certain personal health information or “PHI” as that term is defined under HIPAA. If you or any Affiliate is subject to HIPAA and providing or processing any PHI in connection with the Services, prior to accessing or using the Services you must notify Cloud Gym and enter into a Business Associate Agreement (“BAA”) in the form provided by Cloud Gym. You are solely responsible for determining whether you or any Affiliates are subject to HIPAA. You may send notice and request a BAA by emailing info@cloudgym.com
6.6 - Protection and Security.
During the Subscription Term, Cloud Gym will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data as detailed in the Cloud Gym Security Policy. Cloud Gym will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data. Additional information about Cloud Gym’s security practices can be found here.
6.7 - Unauthorized Disclosure.
If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6.8 - Data-Related Disputes.
You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Cloud Gym has no obligation whatsoever to resolve or intervene in such disputes.
7. Confidential Information
A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict Cloud Gym with respect to Cloud Gym Data or Aggregated Data.
8. Term, Termination and Suspension
8.1 - Term.
Unless otherwise specified in an Order Form, the initial term of this Agreement is ninety (90) days (“Initial Term”). The Initial Term begins on the Effective Date and, unless otherwise specified in an Order Form, automatically renews in successive and consecutive thirty (30) day periods (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”) until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least thirty (30) days’ notice before the end of the relevant Subscription Term. If you elect to terminate this Agreement early, you will remain responsible for payment of all fees owed for the entire Subscription Term and will continue to be charged each month for the remainder of the Subscription Term.
8.2 - Termination for Cause.
Cloud Gym may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe Cloud Gym, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to CLOUD GYM for the period prior to the effective date of termination.
8.3 - Rights on Termination or Expiration.
Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, Cloud Gym will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
For a period of no greater than thirty (30) days following a notice of termination, Cloud Gym will make Your Data (except Cardholder Data and Content (as defined in §2.12)) available to you through Cloud Gym’s standard web services. Upon request by you within thirty (30) days following the termination date of this Agreement, and provided that; (a) you have paid Cloud Gym all amounts owed under this Agreement; and (b) the Parties have an agreed upon a SOW (as defined in Section 2.7), Cloud Gym will make Your Data in its possession or control available to you through Cloud Gym’s data export service. After such thirty (30) day period, Cloud Gym will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Cloud Gym’s assistance in retrieving Your Data, additional fees may apply.
The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 2.5, 3, 4 (other than Section 4.1), 5, 6, 7, 8.3, 8.4, 9.1, 9.3, 10, 11, 12, 13, 14 and 15.
8.4 - Right to Terminate or Suspend Services.
We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Cloud Gym or any third party, (b) that we are required to do so by law, or (c) where the Parties do not agree on the use of a sub-processor.
9. Warranties & Disclaimer
9.1 - Accuracy of Your Account Information.
You agree to provide Cloud Gym with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by Cloud Gym (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify Cloud Gym in writing if any Account Information changes. You agree that Cloud Gym has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.
9.2 - Warranty of Functionality.
Cloud Gym warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Cloud Gym will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If Cloud Gym is unable to restore such functionality, you may terminate the Agreement by providing written notice to Cloud Gym, and you will be entitled to receive a pro-rata refund of any pre-paid fees. Cloud Gym will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.
9.3 - DISCLAIMER.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUD GYM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. CLOUD GYM DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH CLOUD GYM AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE CLOUD GYM PARTIES”).
10. Indemnification
You agree to indemnify, defend, and hold harmless the Cloud Gym Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.
11. Limitations and Exclusions of Liability
CLOUD GYM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY CLOUD GYM. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CLOUD GYM PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH CLOUD GYM AND THE CLOUD GYM PARTIES.
IN NO EVENT WILL ANY CLOUD GYM PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF CLOUD GYM, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Export Controls
You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to Cloud Gym that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.
13. Intellectual Property Policy
Cloud Gym respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement, as may be updated by Cloud Gym from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.