End User License Agreement
Last modified January 1, 2015
IMPORTANT – READ CAREFULLY PRIOR TO PURCHASING, INSTALLING OR DOWNLOADING THE ANYTIME FITNESS APP.
This End User License Agreement (“Agreement”) is a legal agreement between Anytime Fitness, LLC, located at 12181 Margo Avenue South, Suite 100, Hastings, Minnesota 55033 (“Anytime Fitness”), and you (a person referred to herein as the “End User”) for an Anytime Fitness brand software product available either by purchase or for free from the Google Inc. (“Google”) “Google Play” store (the “Software”), and any updates to the Software that may be made available by Anytime Fitness (“Updates,” and together with the Software, the “App”), pursuant to which the End User may obtain or request certain services from Anytime Fitness or an Anytime Fitness® health and fitness club through the App (the “Services”).
This Agreement is between Anytime Fitness and the End User only. As between End User and Anytime Fitness, Anytime Fitness is solely responsible for the App and Services. Google is not a party to this Agreement.
By making acceptance of this Agreement in the manner provided prior to or while purchasing, installing, or downloading the App, the End User agrees to be bound by the terms of this Agreement. If the End User does not agree to the terms of this Agreement, do not purchase, install, download, or use the App.
Anytime Fitness (or its licensor) is and shall be the exclusive owner of all right, title, and interest in and to the App and the content in the Services; including without limitation, any and all patents, copyrights, trademarks and service marks, trade secrets, and all other proprietary rights of any kind whatsoever related to or used in the App or such content. Use of the App does not in any respect whatsoever constitute a grant of any license or other right to use or exploit any of the proprietary rights related to the App or Services, except as expressly granted to the End User in this Agreement.
The End User shall not modify, remove, or obscure any proprietary notices contained in or on the App or any screen images related to the App.
The End User shall not distribute, reverse engineer, translate, decompile, or disassemble the App; and the End User shall not in any other manner attempt to access or learn the source code related to the App.
Subject to the provisions of this Agreement, Anytime Fitness grants the End User a personal, limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to: (i) install and use the App, in object code format only, on a device that is operated through the use of the Google Android operating system (the “Android Product”), provided however, such use may be made only on an Android Product that the End User owns or controls, and only to the extent permitted by the Google Play Terms of Service; and (ii) to use the Services available through the App, for End User’s personal use only.
The End User shall not make any copies of the App. The End User shall comply with any applicable agreements or terms of service when using the App or Services.
The terms of this Agreement apply to all upgrades and updates to the App, unless such upgrade or update is accompanied by a separate license, in which case the terms of that license will govern. Anytime Fitness reserves the right to add or remove features or functions of the App and/or the Services. End User’s use of the App is voluntary and End User may uninstall the App at any time. However, by uninstalling the App, the End User’s will be unable to access to the Services provided by the App.
The App and any underlying technology may not be exported outside the United States in a manner that is prohibited by applicable export laws and regulations. By installing or using the App, the End User assumed responsibility for compliance with the foregoing. The End User represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
THE APP AND THE SERVICES ARE PROVIDED “AS IS, WITH ALL DEFECTS.” THE APP AND THE SERVICES ARE PROVIDED TO THE END USER WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ANYTIME FITNESS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT (I) THE APP OR SERVICES WILL OPERATE IN AN ERROR‑FREE OR UNINTERRUPTED MANNER; (II) THE APP OR SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS; (III) THE APP OR SERVICES WILL SATISFY THE END USER’S REQUIREMENTS; (IV) THE APP IS COMPATIBLE WITH SYSTEMS, PRODUCTS, OR SERVICES PROVIDED BY THIRD PARTY PERSONS OR ORGANIZATIONS; (V) THE RESULTS OBTAINED FROM THE USE OF THE APP OR SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (VI) THE APP OR SERVICES WILL PREVENT THE UNAUTHORIZED DISCLOSURE OF, UNAUTHORIZED USE OF, UNAUTHORIZED ACCESS TO, MISAPPROPRIATION OF, LOSS OF, OR ALTERATION OF ANY DATA OR INFORMATION; OR (VII) ANY ERRORS OR DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. ANYTIME FITNESS DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE APP OR SERVICES WILL SATISFY, OR ENABLE THE END USER TO SATISFY, THE REQUIREMENTS OF ANY GOVERNMENT AGENCY, ASSOCIATION, OR OTHER ORGANIZATION.
ANYTIME FITNESS shall not be liable for any incidental, consequential, indirect, or punitive damages arising out of or in connection with this agreement or THE END USER’S use of the App OR SERVICES.
THE END USER’S SOLE AND EXLUSIVE REMEDY FOR ANY DISPUTE WITH ANYTIME FITNESS RELATED TO THIS AGREEMENT, THE APP OR SERVICES SHALL BE UNINSTALLING THE APP AND CEASING USE OF THE APP AND SERVICES. IN THE EVENT A COURT AWARDS DIRECT DAMANGES DESPITE THE FOREGOING, SUCH DAMAGE SHALL NOT EXCEED THE LESSER OF $5.00 OR THE AMOUNT PAID BY THE END USER FOR THE APP.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to the End User, some or all of the disclaimers, exclusions, or limitations in this Agreement may not apply to the End User, and the End User might have additional rights.
Anytime Fitness and the End User acknowledge that Anytime Fitness, and not Google, is responsible for addressing any claims, to the extent permitted under this Agreement, of the End User or any third party relating to the App or Services or the End User’s possession and/or use of the App or Services, including without limitation (i) product liability claims; (ii) any claim that the App or Services fail to conform to any applicable legal or regulatory requirement, and (iii) any claims arising under consumer protection or similar legislation.
Anytime Fitness and the End User acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the App or Services.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE SHALL HAVE NO LIABILITY OF ANY KIND WHATSOEVER WITH RESPECT TO THE APP OR SERVICES.
The term of this Agreement shall commence on the date the End User makes acceptance of this Agreement and, unless terminated as specified below, shall continue for so long as the End User uses the App or Services.
The End User shall have the right to terminate this Agreement at any time by uninstalling the App. In addition, the End User’s license to the App may, at Anytime Fitness’s discretion, expire when new versions of the App are released.
End User’s license to the App and Anytime Fitness’s obligations under this Agreement will automatically terminate if End User fails to comply with any term of this Agreement. Not notice will be required from Anytime Fitness to effect such termination. End User will receive no refunds upon termination.
Upon termination of this Agreement, all of the End User’s rights to use the App and Services shall terminate immediately; the End User shall remove the App from his/her Android Product.
The End User and his/her heirs, representatives, successors and assigns shall indemnify, defend, and hold harmless Anytime Fitness and its successors and assigns from and against in respect of any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees, that Anytime Fitness may incur or suffer, which arise, result from, or relate to End User’s use of the App or Services or this Agreement.
Anytime Fitness and the End User acknowledge that, in the event of any third party claim that the App or the End User’s possession and use of the App infringes that third party’s intellectual property rights, Anytime Fitness, and not Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Anytime Fitness shall not be in breach of this Agreement in the event it is unable to perform any of its obligations under this Agreement as a result of natural disaster, fire, weather, war, terrorism, emergency conditions, labor strife, the inoperability of the Internet, technical difficulties of Anytime Fitness, Google, or any third party, any updates or other changes to the Android Product, the inability to obtain supplies, or other reasons or conditions beyond its reasonable control.
This Agreement has been prepared in English, and English is the controlling language with respect to all matters concerning this Agreement. Any and all notices or communications related to this Agreement must be in English.
Injunctive or other equitable relief shall be a remedy available to Anytime Fitness in the event of a breach of any provision of this Agreement by the End User; but such remedy shall not be the exclusive remedy available to Anytime Fitness.
Regardless of any statute or law to the contrary, any claim or cause of action End User may have that arises out of or is related to this Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred.
For any questions, complaints, or claims about the App, the End User should contact Anytime Fitness as follows:
Anytime Fitness, LLC
12181 Margo Avenue South, Suite 100
Hastings, Minnesota 55033
Telephone: (651) 438-5000
The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
The End User shall not, without the prior written consent of Anytime Fitness, assign his/her rights or delegate his/her duties under this Agreement.
The waiver of any provision or the breach of any provision of this Agreement by Anytime Fitness shall not be effective unless made in writing. Any waiver by Anytime Fitness of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.
This Agreement shall be governed by the laws of the State of Minnesota (without regard to its choice of law principles or rules) in the United States and the applicable laws of the United States. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree that venue shall be in the federal and state courts located in Hennepin County in the State of Minnesota in the United States, and, in addition, the parties hereby expressly consent to the exclusive jurisdiction of the federal and state courts in the State of Minnesota in the United States. The parties specifically disclaim application of the United Nations Convention on the International Sale of Goods, 1980.
In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement, and the portion of this Agreement held to be invalid shall be construed and given lawful effect in a manner that will best achieve the intent and objective of such portion of this Agreement.
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement, and shall supersede any prior agreements between the parties with respect to the subject matter hereof. Anytime Fitness may revise this Agreement at any time without notice, and any continued use of the App or Services following the date on which changes to this Agreement are published on the “Google Play” store or within the App shall constitute the End User’s acceptance of all such changes.