Aug 16, 2023
The use of this website ( “Website“ ) and the provision of the services related thereto are offered to you ( “You“ ) by My Strength Book Inc. ( “AppRabbit“ ), subject to Your acceptance of the terms and conditions contained herein.
“ Aggregated Data ” has the meaning ascribed to it in Section 3(b).
“ Authentication ID ” means a security mechanism by which You identify Yourself to the AppRabbit and gain access thereto, which security mechanism may include usernames, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by AppRabbit from time to time.
“ AppRabbit Coaches ” means the individuals who create training programs for the AppRabbit from time to time.
“ AppRabbit ” means the assessment methodology deployed by AppRabbit:
(i) to assist fitness and strength athletes to build workouts, plan training and assess performance;
(ii) to calculate key metrics that assess progression and performance across a number categories;
(iii) to analyze key metrics that lead to increased performance, in the aggregate, and to make conclusions around training variables that result in successful outcomes; and
(iv) to analyze any and all such other metrics as determined by AppRabbit, in its sole discretion.
“ AppRabbit Server ” means that computer server located at AppRabbit’s premises, or a third party provider of hosting and/or network services, that houses the Software.
“ Personal Information ” means any information that is protected under applicable privacy legislation, including Personal Information and Protection of Electronic Documents Act (Canada), Personal Information Protection Act (Alberta) and any other Canadian federal or provincial privacy and health information protection legislation, as from time to time enacted or amended.
“ Proprietary Material ” means the System including, without limitation, the Software, the training programs created by the AppRabbit Coaches, the content, metadata, design, organization, compilation, look and feel, the fitness plans, programs and all other protectable intellectual property available through the System.
“Software” means the application computer software, in object code format, used by AppRabbit to automate the AppRabbit and provide the services therein.
“ Standard Coaches ” means the individuals who provide coaching services on the AppRabbit and such other coaching portals made available on the System from time to time.
“System” means, collectively, this Website, the AppRabbit, the Software, the AppRabbit Server and such devices and peripherals physically located with the AppRabbit Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure.
“ Your Data ” means any and all data, photographs, videos, comments, graphics, text, files, documentation or other information that You may upload, either directly or indirectly, to the System.
DATA AND PRIVACY
(b) Aggregated Data: You further acknowledge and agree that AppRabbit may:
(i) use Your Data, solely on an anonymous and de-identified basis (such anonymous data referred to as the “Aggregated Data“), for the compilation and analysis of trends, statistics, metrics and other information without any link or identifiable reference to You or Your Data; and
(ii) share its analyses with scientific journals, consultants, representatives, third party advertisers, the AppRabbit Coaches, the Standard Coaches, other users, attendees at conferences, workshops or seminars and any other person, organization or association, in AppRabbit’s sole discretion.
(b) Security Requirements: AppRabbit shall implement and maintain those safeguards and controls as it deems necessary and commercially reasonable for the deterrence, detection, prevention and correction of any unauthorized intrusion, access or use of the System and Your Data. You acknowledge and agree that notwithstanding AppRabbit’s safeguards, such methods and procedures may not prevent unauthorized electronic intruders to access the System through the internet or through other form of electronic communication. If such unauthorized electronic intruders are able to bypass AppRabbit’s security protocols and safeguards, such unauthorized electronic intruder may change, delete or otherwise corrupt the contents and data contained in the AppRabbit Server, including Your Data. Except for the maintenance of appropriate safeguards, which are designed to frustrate access from unauthorized electronic intruders, AppRabbit shall not be liable to You, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.
(c) Maintenance: From time to time, it will be necessary for AppRabbit to perform maintenance on the System. Such maintenance includes routine maintenance to ensure the continued provision of the services through the continued operation of the System or upgrading, updating or enhancing the System. AppRabbit shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the System to You.
(d) Changes: AppRabbit may, at any time, with or without notice to You
(i) make changes that are necessary to comply with applicable safety, security or other statutory requirements or orders from applicable governmental authorities;
(ii) supplement or make changes to its user documentation and to its rules of operations, access procedures, security and privacy procedures and policies; and
(iii) change the components, type and location of the System.
(e) Authentication IDs: You shall control and maintain the security of Your Authentication ID. You shall promptly report to AppRabbit any errors or irregularities in the operation of the System or any unauthorized use of any part thereof and inform AppRabbit immediately if Your Authentication ID becomes known to any third party who is not authorized to possess such information. You hereby indemnify and hold harmless AppRabbit from any actions, claims, suits, proceeding or damages made against AppRabbit from a third party as a result of any use of Your Authentication ID, whether or not such use is authorized by You.
(f)Your Data: You acknowledge and agree that AppRabbit:
(i) will not be responsible for the accuracy, completeness or adequacy of any of Your Data or the results generated from any of Your Data uploaded to the System and processed by the Software;
(ii) has no control over any of Your Data or the results therefrom;
(iii) does not purport to monitor Your Data; (iv) shall not be responsible to back up or maintain any back up of Your Data or portion thereof; and (v) You are not entitled to any compensation or other payment in connection with Your Data.
USE OF SERVICES
(i) using the Software; and
(ii) uploading, processing, viewing, displaying, using and downloading Your Data to and from the AppRabbit.
(b) Restrictions on Use: Any rights not granted herein are strictly reserved by AppRabbit. You shall not
(i) permit any third party to use the System,
(ii) re-license or sublicense, lease, loan or otherwise distribute the System to any third party; and
(iii) process or permit to be processed the data of any other Party. You shall not, and shall not permit others to, reverse engineer, decompile, disassemble or translate the Software or any other software used by AppRabbit to deliver the System, or otherwise attempt to view, display or print such software, including the Software’s source code.
(a) Grant by You: You hereby grant to AppRabbit a royalty-free, non-exclusive, fully paid, worldwide, transferable right and licence to use, copy, adapt, reproduce, modify, distribute, store and display Your Data for the following purposes:
(ii) enabling AppRabbit to create and prepare derivative works, or incorporate into other works such data and information; and
(iii) to de-identify Your Data to generate the Aggregated Data.
(i) be responsible for procuring, installing, operating, supporting and maintaining Your systems, including computer hardware and software, including browsers, necessary for You to access the System;
(ii) be responsible for procuring and maintaining communication services, including high speed internet connections between Your systems and the System;
(iii) protect Your Authentication ID;
(iv) be responsible for the accuracy, completeness and adequacy of all of Your Data; for the management, manipulation and processing of Your Data; and the back up and maintenance of all of Your Data;
(vi) comply, at all times, with all applicable legal and regulatory requirements and with AppRabbit’s conduct and security policies in respect of the use of the System.
(c) Prohibited Activities: You shall not:
(i) use the AppRabbit for improper or unlawful purposes;
(ii) include, or knowingly allow others to include, any objectionable content or introduce viruses to the System and shall institute such security procedures and safeguards as necessary to prevent the posting, uploading or inclusion of any objectionable content or viruses to the System (for the purposes of this Section, “objectionable content” means content that infringes any applicable laws, regulations or third party rights, and content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive or in breach of any person’s intellectual property rights);
(iii) intercept or attempt to intercept any messages or information transmitted to and from the System that are not intended for You;
(iv) impersonate any person or entity, including another user, coach, employee, volunteer or representative of AppRabbit, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(v) take any action that imposes an unreasonable or disproportionately large load on the System;
(vi) use the Software to develop any derivative works or any functionally compatible or competitive to the Software;
(vii) copy, reproduce, sell, publish, distribute, display, retransmit or otherwise provide access to the Proprietary Materials to a third party without the express authorization from AppRabbit;
(viii) rearrange, modify or create derivative works using the Proprietary Materials;
(ix) copy or download the Software or any other software used by AppRabbit to provide the services and which is contained within the System; or
(x) remove any copyright or other proprietary rights on the System or make or attempt to make copies of the System.
(d) Viruses: If AppRabbit, in its sole discretion, forms the view that any of Your Data or any other information or files uploaded by You contains or includes a virus, AppRabbit may remove You Data, information or file from the System and take such other action as AppRabbit deems necessary to protect the integrity and operation of the services, the AppRabbit and the Software. Any costs associated with such removal may be charged by AppRabbit to You. AppRabbit shall notify You of its actions under this Section as soon as reasonably possible.
You hereby acknowledge that:
(a) You are in good physical and mental health;
(b) The information and content of the System is intended to assist You in Your fitness efforts and performance and is being furnished for educational purposes only;
(c) The information You provide to AppRabbit is truthful and accurate;
(d) AppRabbit is not a medical organizational, hospital or staffed by medical professionals and the information provided on the System, including the information which may be attributed to the Standard Coaches and the AppRabbit Coaches, is not a substitute for medical and/or professional advice;
(e) You will not initiate or continue a program or workout if a medical professional advises You against it;
(f) The Standard Coaches, the AppRabbit Coaches and AppRabbit’s coaches, volunteers, employees, staff and representatives cannot be held liable for their statements, advice or opinions that are provided to You, even in the case of gross negligence;
(g) In no event will AppRabbit be liable if You arrange to meet other AppRabbit users in an offline environment; and
(h) STRENGTH SPORTS ARE dangerous and may lead to serious injury and death. By using the AppRabbit you are electing to do so at your own risk.
FEES AND PAYMENT
(a) General: Users of the System may be unregistered visitors, trial users or paying subscribers. Additional terms and conditions for each type of user may be published on the Website, from time to time, and are hereby incorporated by reference.
(b) Paid Subscriptions: You may choose to access the AppRabbit by registering for a standard, premium, partner, subscription or any paid subscription (each, a “ Paid Subscription “). Additional terms and conditions relating to each Paid Subscription, including periodic fees and payment options, are more particularly described on the Website. By registering and continuing to be registered under a Paid Subscription, You:
(i) agree to provide AppRabbit with Your preferred payment method (“ Payment Method “);
(ii) represent to AppRabbit that the information relating to Your Payment Method is true and correct and up-to-date at all times;
(iii) authorize AppRabbit to charge the applicable fees relating to a Paid Subscription to Your Payment Method on each of the applicable billing days;
(iv) authorize AppRabbit to charge all amounts relating to additional purchases made on the System to Your Payment Method;
(v) agree that all fees relating to a Paid Subscription are payable in advance and will be billed automatically to the Payment Method at the start of the monthly, quarterly or annual subscription term, as applicable, in the first instance, and on each Auto-Renew Date (as defined below), thereafter;
(vi) acknowledge that all payments to AppRabbit are final and non-refundable;
(vii) acknowledge that You can cancel a Paid Subscription at any time but AppRabbit will not reimburse any part of the fees relating to such Paid Subscription payable hereunder; and
(viii) acknowledge that the terms and conditions relating to a Paid Subscription are subject to change without notice.
(c) Free Trial: You may choose to access the AppRabbit for a limited time by registering for a free trial (“ Free Trial “). By registering for a Free Trial, You agree to pay any fees or incurred charges relating to the Free Trial, as applicable. The length of the Free Trial depends on a number of factors more particularly described on the Website.
(i) fail to pay in full any sum owing by it to AppRabbit by the due date thereof and such failure continues for a period of seven (7) calendar days after delivery of a written notice by AppRabbit requiring You to correct such failure;
(ii) infringe the intellectual property rights associated with the Proprietary Material asserted by AppRabbit or any of its licensors; or
(i) AppRabbit shall terminate and invalidate any Authentication IDs associated with You; and
(ii) You shall pay to AppRabbit the full amount of all fees payable hereunder as of the date of termination, if any, and any other monies owing to AppRabbit hereunder.
(a) AppRabbit’s Ownership: You acknowledge and agree that, as between You and AppRabbit, AppRabbit (or its licensors, as the case may be) owns all worldwide right, title and interest, including all intellectual property rights, in and to:
(i) the AppRabbit;
(ii) the Software;
(iii) this Website;
(iv) the Aggregated Data;
(v) the Proprietary Material; and
(vi) any modifications, enhancements, upgrades, updates or customization to any of the foregoing. You do not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the licenses granted herein.
(b) Your Ownership: AppRabbit acknowledges and agrees that all worldwide right, title and interest including, all intellectual property rights in and to Your Data shall be the exclusive property of You. AppRabbit does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Your Data, other than the license granted herein.
(a) Definition: “Confidential Information” means the Software, Your Data, the AppRabbit, the Proprietary Material and any other information disclosed by a party to the other that the receiving party knows or ought to know, by the nature of such information, the confidential nature of such information whether or not identified as confidential by the disclosing party, provided, however, that Confidential Information shall not include any data or information:
(i) that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of the receiving party;
(ii) that, prior to disclosure by the disclosing party, was already in the possession of the receiving party, as evidenced by written records kept by the receiving party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving party;
(iii) independently developed by the receiving party, by persons having no direct or indirect access to the disclosing party’s Confidential Information provided that the receiving party provides clear and convincing evidence of such independent development;
(iv) which, subsequent to disclosure, is obtained from a third party:
(A) who is lawfully in possession of the such information;
(B) who is not in violation of any contractual, legal, or fiduciary obligation to either party, as applicable, with respect to such information; and
(C) who does not prohibit either party from disclosing such information to others; or
(v) is further disclosed with the prior written consent of the disclosing party, but only to the extent of such consent.
(b) Obligation: Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third party other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
(c) Disclosure By Law: In the event that any Party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective order issued by a court of competent jurisdiction or by a governmental authority, such Party agrees to
(i) immediately notify the other Party of the existence, terms and circumstances surrounding such a request;
(ii) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and
(iii) if disclosure of such Confidential Information is required, exercise its commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.
(d) Injunctive Relief: Each Party acknowledges and agrees that any unauthorized use or disclosure by it of any of the other Party’s Confidential Information, in whole or part, will cause irreparable damage to the disclosing Party, that monetary damages would be an inadequate remedy and that the amount of such damages would be extremely difficult to measure. The receiving Party agrees that the disclosing Party shall be entitled to seek temporary and permanent injunctive relief to restrain the receiving Party from any unauthorized disclosure or use.
DISCLAIMER, INDEMNITY AND LIABILITY
(a) Disclaimer: There are no express or implied warranties or conditions in relation to the System, including implied warranties or conditions of merchantable quality, fitness for a particular purpose, or non-infringement, or that the System will meet Your needs or will be available for use at any particular time or will be error free. Under no circumstances will AppRabbit be liable for the results of Your use or misuse of the System, including the AppRabbit. AppRabbit IS PROVIDING THE SYSTEM ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND OR NATURE WHATSOEVER. AppRabbit DOES NOT REPRESENT THAT YOUR USE OF THE AppRabbit WILL RESULT IN ENHANCED PERFORMANCE OR INCREASED FITNESS. YOU USE THE SYSTEM, INCLUDING THE AppRabbit IS SOLELY AT YOUR RISK.
(b) Indemnity: You shall defend at Your own expense any third party claim brought against AppRabbit, the Standard Coaches or the AppRabbit Coaches, their respective affiliates, directors, officers, employees and agents, to the extent such claim:
(i) alleges, directly or indirectly, that any of Your Data infringes any Canadian copyright, patent or registered trademark of a third person;
(ii) alleges, directly or indirectly, that Your Data contains any Objectionable Content; or
(iii) is in relation to Your use of the AppRabbit.
(c) Consequential and Other Damages: Subject to Section 13(e), in no event shall either Party be liable to the other for any consequential, incidental, exemplary or punitive damages even if advised in advance of the possibility of such damages. Further, AppRabbit, the Standard Coaches or the AppRabbit Coaches shall not be liable to You for any lost revenue, lost profit, lost savings or any inability to achieve any improvement in the management of Your building, including any economic or environmental sustainability objective.
(i) the amount paid by You to AppRabbit in the twelve (12) months preceding the date of the event; or
(ii) two thousand five hundred dollars ($2,500).
(e) Exceptions to Limitations: Notwithstanding Sections 13(c) and 13(d), neither Party excludes or limits any liability for:
(i) fraud, fraudulent misrepresentation or fraudulent concealment;
(ii) Your obligations set out in Section 12; or
(iii) Your payment obligations contained herein.
THIRD PARTY WEBSITES
(a) Notice: Every notice or other communication hereunder shall be deemed to have been duly given and made if in writing and delivered to the Party fo r whom it is intended, according to the following:
To: AppRabbit, support@AppRabbit.com
To You: the e-mail address that You inputted onto the System.
Any such notification shall be deemed delivered on the next calendar day.
(b) Relationship: The Parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either Party as an agent, representative or employee of the other Party, or both Parties as joint venturers or partners for any purpose. Neither Party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each Party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other Party.
(c) Enurement: This Agreement shall enure to the benefit of and be binding upon each of the Parties hereto and their permitted successor and assigns.
(d) No Assignment: Neither this Agreement nor any rights or obligations hereunder shall be assignable by a Party without the prior written consent of the other Party.
(e) Language: It is the Parties desire and agreement that this Agreement and all Schedules and associated documentation be drafted in English. Les Parties conviennent que la présente convention et tous les documents s’y rattachant, soient rédigés en anglais.