Last Updated: September 15, 2022
ALWAYS READ THE INSTRUCTIONS FOR USE. SEEK ADVICE FROM A HEALTH PROFESSIONAL PRIOR TO USING THE APP PARTICULARLY IF YOU HAVE, OR SUSPECT YOU MAY HAVE, ANY HEALTH RISKS. FOLLOW THE INSTRUCTIONS FOR USE ON THE APP AND IF SYMPTOMS PERSIST, WORSEN OR CHANGE UNEXPECTEDLY TALK TO YOUR HEALTH PROFESSIONAL.
PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE USING OUR PLATFORM.
BY ACCESSING OR USING THE PLATFORM, YOU CONSENT TO THESE TERMS AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
Welcome to the Limber Platform! Developed by our team of doctors, the Limber platform provides you with tailored suggestions and programs based on the information you provide regarding your specific health status and goals.
THE LIMBER PLATFORM DOES NOT PROVIDE MEDICAL ADVICE.
THE INFORMATION AND OTHER CONTENT AVAILABLE ON OR THROUGH THE PLATFORM ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. YOU SHOULD ALWAYS CONSULT WITH YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER REGARDING QUESTIONS YOU HAVE ABOUT ANY MEDICAL CONDITION BEFORE MAKING HEALTH CARE DECISIONS.
PLEASE ALWAYS CONSULT A HEALTH CARE PRACTITIONER BEFORE BEGINNING ANY NEW EXERCISE PROGRAM TO ENSURE THAT IT IS COMPATIBLE WITH YOUR HEALTH ROUTINE.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 (FOR USERS IN AUSTRALIA CALL 000 FOR USERS OUTSIDE THE UNITED STATES, PLEASE CALL YOUR APPLICABLE EMERGENCY NUMBER) IMMEDIATELY. NEVER DELAY IN SEEKING PROFESSIONAL MEDICAL ADVICE OR DISREGARD SUCH ADVICE BECAUSE OF SOMETHING YOU HAVE READ ON THE PLATFORM!
Please note this platform is not a replacement for medical treatment and the user has sole responsibility for the platform usage. Reliance on any information or other content available on or through the platform or otherwise provided by Limber is solely at your own risk.
This Platform is not appropriate for certain people. For example, you should not use this Platform if you have any of the following conditions:
• “App” refers to any downloadable application (including, a mobile application) owned or operated by Limber. References to the “App” include any and all features, functionality, tools and content available on or through each such application.
• “Content” refers to any and all information, videos, text, photos and other content provided or made available by Limber on or through the Platform, including information, videos, text, photos and other content relating to physical conditions and/or exercise regimens.
• “Limber” “we,” “us”, or “Company” refer to Limber Health, Inc. and our officers, directors, employees, contractors, sponsors and agents. To the extent applicable, they also refer to our affiliates, service providers and licensors, and their respective officers, directors, employees, contractors and agents.
• “Platform” refers, collectively, to any and all Websites, Apps and Content made available to you by Limber, including any related services and promotions, and any software and technology used to provide any of the foregoing.
• “Users” means any and all persons that access or use the Platform. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Website or App, and accessing or using the Content.
• “Website” refers to any website owned or operated by Limber (including the website currently located at https://www.limberhealth.com/). References to the “Website” include any and all features, functionality, tools and content available on or through each such website.
PLATFORM RULES AND SUPPLEMENTAL TERMS
• YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
• LIMITATIONS OF OUR LIABILITY TO YOU; AND
• A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
• YOUR ACCESS TO AND USE OF THE PLATFORM AND CONTENT IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH ALL APPLICABLE TERMS.
AMENDMENT OF TERMS
Limber reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the “Last Updated” date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another written means. By continuing to use the Platform or Content after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding on Limber unless it is in writing and signed by an authorized representative of Limber.
CONSEQUENCES OF NON-COMPLIANCE
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
You are hereby prohibited from accessing or using the Platform from any territory where the Content, Website, App, or any of the features, functionality, tools, content thereof, is illegal. You are solely responsible for compliance with applicable laws, rules and regulations in your place of residence, including export laws and any regulations and local laws regarding online conduct and content.
MODIFICATIONS AND UPDATES TO THE PLATFORM AND CONTENT
Limber reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Content, in whole or in part, including any Website or App, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the Internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Limber has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
You understand that it is your responsibility to consult with a doctor prior to and regarding your participation with the platform. To the extent permitted by law, you hereby WAIVE AND RELEASE Limber Health, Inc., its owners, officers, employees, vendors, and agents from any claim, demand or cause of action of any kind resulting from or related to your participation with the platform. You understand and acknowledge that you are fully responsible for any and all risks, injuries, or damages, known or unknown, which might occur as a result of your participation.
Before you are able to use any of the Content, you will be required to register for a user account through the platform.
You may not register for an account:
• if you are a person barred from entering into contracts under the laws of the United States or other applicable jurisdiction;
• on behalf of any other person (except legal parents/guardians creating an account for the benefit a minor); or
• on behalf of any company or other entity.
No person may have more than one active account at any given time.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Limber account or any other account that you may connect to your Limber account. You agree not to disclose your username or password to any third party, and you agree to notify Limber immediately at [email protected] of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Limber cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
We reserve the right to cancel accounts of Users who fail to comply with the Terms.
USER CONDUCT GUIDELINES
Users may not:
• access, copy, store or use any aspect of the Platform or Content for any purpose other than your own personal use;
• distribute, disclose, publish, sell, rent or otherwise expose any aspect of the Platform or Content to any third party, except your doctor or other qualified health care provider, for any purpose except your own personal treatment, or permit your doctor or other health care provider to access, copy, store or use any aspect of the Platform or Content for any other purpose;
• prepare derivative works from the Platform or Content;
• share your user ID or transfer your account to any person without our consent
• circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform or Content if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
• access, search, collect information from, or otherwise interact with the Platform or Content whether by manual methods or by use of any software, device, script or robot, or by any other means (automated or otherwise), including by “scraping,” “crawling” or “spidering” the Platform, to systematically retrieve Content in order to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like (except that crawling is permissible without further authorization if done in accordance with the provisions of the robots.txt file only);
• access the Platform or Content other than through the currently available, published interfaces that are provided by Limber, unless you have been specifically authorized to do so in a separate agreement with Limber;
• mirror or frame any page, feature, functionality, tool or content the Platform or Content, copy any aspect of the Platform or Platform, or use or display Limber’s name or any of Limber’s other trademarks, logos or proprietary materials, without Limber’s express written consent;
• interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or Content or otherwise imposing an unreasonable or disproportionately large load on the Platform;
• access, tamper with or use non-public areas of any of the Platform, Limber’s computer systems, or the technical delivery systems of Limber’s providers;
• probe, scan, or test the vulnerability of any system or network of Limber or its providers, or breach or circumvent any security or authentication measures of such system or network;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Limber or any of Limber’s providers or any other third party to protect the Platform;
• forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform or Content to send altered, deceptive or false source-identifying information;
• attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
• export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
• otherwise abuse the Platform or breach the Terms; or
• attempt to do any of the foregoing, or advocate, encourage, assist or permit any third party to do any of the foregoing.
COMMUNICATIONS ABOUT YOUR ACCOUNT
If you create an account, Limber may send you communications about your account by email, SMS, mobile notifications, or phone. Such communications may include, for example, important reminders about your exercise therapy programs, tailored suggestions, and other important information regarding your specific health status and goals. By creating an account you agree to receive such communications about your Limber account. You may modify your communication preferences by:
Limber reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Limber has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform or Content by any User, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Limber, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Limber, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform and Content (including for customer support purposes).
You agree to cooperate with and assist Limber or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
Account Suspension and Cancellation:
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account in response to a suspected breach of the Terms, and take technical and legal steps to prevent you from using our Platform and Content. If Limber has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Limber’s reasonable satisfaction.
Once your account is terminated, Limber will have the right, but not the obligation to delete any or all of the information and content submitted, uploaded or otherwise provided by you.
When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
INTELLECTUAL PROPERTY RIGHTS & LICENSES
The Platform and Content, including any and all Websites and Apps, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries, including but not limited to Australia. You acknowledge and agree that the Platform and Content, and all intellectual property rights therein are the exclusive property of Limber and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Content.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Limber (the “Limber Marks”) are the property of Limber, and that you are not permitted to use the Limber Marks without our prior written consent.
Subject to your compliance with the Terms, Limber grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform and the Content, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to personally use the Content as provided by Limber in the manner permitted by the Terms.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform or Content in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Limber or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Limber’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Limber or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at [email protected]. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Limber. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Limber or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby unconditionally and irrevocably transfer and assign to Limber all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and unconditionally and irrevocably waive and consent to any infringement of any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Limber’s rights in such improvements, enhancements and modifications.
Links to Third Party Websites and Services
Limber does not recommend or endorse any tests, doctors or other health care providers, products or procedures that may be referenced, discussed or advertised on the Platform.
The Platform may provide links to third-party websites, resources or services. You acknowledge and agree that Limber is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Limber of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
THIRD PARTY TERMS
Apps Downloaded from Third Party App Stores
Our App may be available for download from third party app stores which are not owned or operated by Limber. When downloading, installing, accessing, using or browsing the App, you must comply with any applicable third party terms and conditions, including any End User License Agreement, your mobile device agreement or any wireless data service agreement, and ensure that your use of the App is not in violation of any such terms or conditions.
Without limiting the foregoing, any Apps accessed through or downloaded from Apple’s App Store (an “App Store Download”) may only be used (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system), and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms and Conditions.
Without limiting the foregoing, the following applies to App Store Downloads:
• You acknowledge and agree that (i) these Terms are between you and Limber only, and not Apple, and (ii) Limber, not Apple, is solely responsible for the App Store Download and content thereof. Your use of the App Store Download must comply with the App Store Terms and Conditions.
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Download.
• In the event of any failure of the App Store Download to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Download to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Download. As between Limber and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Limber.
• You acknowledge that, as between Limber and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Download or your possession and use of the App Store Download, including: (i) product liability claims; (ii) any claim that the App Store Download fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• You acknowledge that, in the event of any third-party claim that the App Store Download or your possession and use of that App Store Download infringes that third party’s intellectual property rights, as between Limber and Apple, Limber, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
• You acknowledge and agree that Apple and its subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Download, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Download against you as a third party beneficiary thereof.
• Without limiting any other terms of the Terms, you must comply with all applicable third party terms and conditions when using the App Store Download.
HEALTHKIT AND GOOGLE FIT
Limber may make use of and/or allow you to connect your Limber account with third party apps, such as the Apple Health App (“HealthKit”) and Google Fit. You can choose to connect and share information with these third party apps and allow Limber to access certain information within your HealthKit and Google Fit accounts. If you grant us access to HealthKit or Google Fit, Limber may be able to add information to your HealthKit and Google Fit accounts, such as exercise-related information.
You can remove access to your HealthKit or Google Fit account at any time by uninstalling the Limber app. You can also remove access by managing your connections in HealthKit or Google Fit
Limber is in no way responsible for the protection of any of your information that you agree to store with HealthKit or Google Fit, which are subject to separate privacy policies and terms. Please review the applicable policies and procedures before syncing and backing up your health data and/or other information with the Health Kit or Google Fit.
WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
Warranties by Users
You represent and warrant to Limber that:
• you have the power and authority to accept and agree to the Terms,
• you own or control all of the rights necessary to provide the information that you provide and to grant the rights and licenses granted herein,
• the exercise by Limber of the rights granted by you hereunder will not cause Limber to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
• all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, LIMBER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM OR CONTENT, OR THAT USE OF THE PLATFORM OR CONTENT WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY CONTENT.
Limitation of Liability:
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
• INFORMATION AND OTHER CONTENT PROVIDED ON OR THROUGH THIS PLATFORM DOES NOT CONSTITUTE MEDICAL PRACTICE OR ADVICE, NOR IS IT INTENDED TO REPLACE THE NECESSITY OF CONSULTATION WITH A DOCTOR OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL. WHILE SOME INDIVIDUALS DEPICTED IN THE PLATFORM MAY BE LICENSED HEALTHCARE PRACTITIONERS, THEY DO NOT PROVIDE MEDICAL OR HEALTH CARE SERVICE THROUGH THE PLATFORM. ANY LICENSED PRACTITIONERS ARE QUALIFIED UNDER APPLICABLE LAWS IN THE U.S. ONLY AND ARE NOT LICENSED OUTSIDE OF THE U.S., INCLUDING IN AUSTRALIA. THE PLATFORM PROVIDES MOTIVATIONAL TOOLS AND GENERAL INSTRUCTION TO HELP YOU MEET YOUR WELLBEING GOALS, MAINTAIN HEALTHY HABITS, AND INCREASE ACTIVITY AND FITNESS. YOU SHOULD ALWAYS CONSULT WITH A QUALIFIED DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IN YOUR PLACE OF RESIDENCE BEFORE MAKING HEALTH CARE DECISIONS.
• THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM AND CONTENT IS AND REMAINS WITH YOU.
• WITHOUT LIMITING THE FOREGOING, LIMBER DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PLATFORM OR CONTENT, (II) THE ACTS OR OMISSIONS OF ANY PERSON(S) WITH WHOM YOU MAY COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM OR CONTENT, AND (III) ANY CONTENT ACCESSED OR VIEWED IN CONNECTION WITH THE USE OF THE PLATFORM OR CONTENT.
• YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE PLATFORM AND CONTENT, VIEWING CONTENT IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE LIMBER AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
• IN NO EVENT WILL LIMBER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LIMBER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
• IN THE CASE OF THE UNITED STATES, CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, LIMBER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF THE FOREGOING, SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
Basis of the Bargain:
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LIMBER AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, indemnify, and hold Limber its parent, subsidiaries, affiliates, licensors, sponsors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform or Content, including any and all features, functionality, tools, content and promotions available on and through the Platform, (ii) any interactions with any other person as a result of your use of the Platform or Content, (iii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iv)your gross negligence or willful misconduct.
Obligation to Defend. You agree that, at Limber’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Limber may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii)you will not enter into any settlement or other compromise without the prior written approval of Limber (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
• No Implied Indemnity. No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
GOVERNING LAW & DISPUTE RESOLUTION
Please read this Arbitration Agreement carefully. It is part of your contract with Limber and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods pro-vided under the Terms.
B. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the re-quested relief. A Notice to the Company should be sent to: [email protected]. After the Notice is received, you and the Company may attempt to resolve the claim or dispute in-formally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be dis-closed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
C. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at or by calling the AAA at 1-800-778-7879. The arbitration shall be con-ducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non appearance based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be deter-mined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
D. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be con-ducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
E. Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
F. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any dam-ages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
G. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRI-AL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
H. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
I. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
J. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
K. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
L. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
M. Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
N. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
O. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Fees and Costs:
The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
Future Amendments to this Section:
Both of us agree that if we make any amendment to this “Governing Law & Dispute Resolution” section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Limber. We will notify you of amendments to this section by posting the amended Terms on . If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Limber in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Limber may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
Survival of Terms:
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of this Agreement shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Limber (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
Third Party Beneficiaries:
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i)”herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii)”or” connotes any combination of all or any of the items listed, and (iii)”including” (and any of its derivative forms) means “including but not limited to.”
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Platform or Content or requests to receive further information regarding use of the Platform or Content may be sent to the above address or to [email protected].
The Complaint Assistance Unit of the Division of Consumer Content of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see for additional information.
ADDITIONAL TERMS FOR AUSTRALIAN USERS
If you have any questions or concerns, please contact Limber at [email protected].
You can also write to us at:
Limber Health, Inc.
11718 Parklawn Drive Rockville, Maryland 20854
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