1.1. In this Agreement, the following words and phrases will have the following meanings :
the MYZONE mobile software applications (“App”) designed for downloading to mobile devices;
any commercial fitness centre, corporate facility, educational facility, retailer or other concern issued with a Facility Code;
a code issued by a Facility to enable a User to register their MYZONE Belt and thereby access and use the MYZONE System;
the MYZONE System equipment supplied to a Facility, and including , Facility Software;
the personal monitoring and display software operated on equipment for group-based use, and any variations, modifications, copies, releases, or enhancements thereof from time to time;
the licence entitling the User to use the MYZONE System in accordance with these Terms;
any software, code, file or programme including worms, trojan horses, viruses and other similar things or devices which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, or prevent, impair or otherwise adversely affect access to or the operation of any programme, system or data;
any one or more, as relevant to the use of the Equipment, ofMyzone Limited and its subsidiaries and affiliates which includesMyzone (UK) Limited,Myzone (Worldwide) Limited,Myzone Moves (UK) Limited andMyzone Moves (Worldwide) Limited, all of which have their registered office at 29/31 Athol Street, Douglas, Isle of Man IM1 1LB, British Isles
A chest belt or garment incorporating a MYZONE branded heart rate monitor;
the MYZONE personal monitoring system comprising all current and future MYZONE branded website and mobile products and services and System Software, including the MYZONE Belt and App;
the support services provided by MYZONE or a MYZONE-authorised service provider in respect of the System Software
the personal monitoring and display software operated on or as part of the MYZONE System or of the App, and any variations, modifications, copies, releases, or enhancements thereof from time to time;
these terms and conditions;
an individual accessing or using the MYZONE System for their personal use;
The warranty period applicable to a given MYZONE branded product.
1.2. The headings contained in these Terms are for convenience of reference only and shall not affect their interpretation or construction.
1.3. Unless the context otherwise requires words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include natural persons, bodies corporate, unincorporated associations, governments, states, trusts and partnerships, in each case whether or not having a separate legal personality.
1.4. The words and phrases “including” and “in particular” shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.
1.5. Any reference to “writing” or “written” includes faxes and email.
1.6. References to any statute, enactment, order, regulation or other similar instrument shall be construed as references to the same as amended by or as contained in any subsequent re-enactment, modification or statutory extension thereof.
2. APPLICATION OF TERMS
2.1. These Terms shall
2.1.1. govern the User’s use of the MYZONE System; and
2.1.2. override all other terms inconsistent with them, whether express, implied or otherwise, including terms, conditions or stipulations contained in any communication between the User and supplier of a MYZONE Belt to the User.
3. SYSTEM SUPPLY AND USE
3.1. Provided that the User has been properly issued with a Facility Code by a Facility, MYZONE will permit the User to use their MYZONE Belt in conjunction with the MYZONE System.
3.2. The User will not access or use or attempt to access or use the MYZONE System:
3.2.1. in any way which interferes with, damages or disrupts, or might reasonably be expected to interfere with, damage or disrupt the MYZONE System;
3.2.2. in any way which is unlawful, illegal or fraudulent, or has any unlawful, illegal or fraudulent purpose or effect;
3.2.3. knowingly to store, transmit or upload any data or material that comprises or contains Malware;
3.2.4. knowingly to store, transmit or upload any data or material which
(a) advocates, promotes or assists violence, any other illegal or unlawful activity;
(b) is obscene, offensive, hateful, defamatory or inflammatory;
(c) is threatening, abusive or which invades another’s privacy, or causes needless anxiety or annoyance;
(d) advocates or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(e) infringes any copyright, database right, trade mark or other proprietary right of any other person;
(f) is fraudulent or misleading; or
(g) is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
3.3. The User acknowledges that each MYZONE Belt is intended for use at the Facility to which the belt is registered, and that:
3.3.1. each MYZONE Belt can at any given time only be used in relation to one Facility / Facility Code; and
3.3.2. a Facility may at its sole discretion refuse to allow a MYZONE Belt registered at that Facility to be registered for use at another Facility.
3.4. The User acknowledges that the App is intended to allow Users mobile access to the MYZONE System and MYZONE will be entitled to assume that the User has obtained any permission required from the owner or controller of any mobile telephone or handheld device used to download a copy of the App (a “Device”). The App User or Device owner / controller may be charged by service providers for internet access on the Device and MYZONE will have no responsibility for the use of the App on or in relation to any Device, whether or not it is owned by the App User.
3.5. Where the Facility wishes to allow the User of a MYZONE Belt registered at that Facility to use it at another facility (which consents to this) and to have access to existing belt-generated data, MYZONE will provide any assistance reasonably required to effect such use and access.
3.6. MYZONE may issue updates to the App from time to time. The User acknowledges that they may not be able to use the App until he/she has downloaded or streamed the latest version of the App and has accepted any new terms applicable to its use.
4. PROVIDING EQUIPMENT TO USERS UNDER THE AGE OF 13.
The User acknowledges the importance of complying with applicable laws governing the collection and use of personal data relating to young persons and in particular agrees to comply with MYZONE’s requirements in relation to a User under the age of thirteen (13) years.
5.1. In consideration of the User’s acceptance of these Terms, MYZONE hereby grants the User a non-exclusive, non-transferable licence to use the System Software.
5.2. The User undertakes
5.2.1. not to copy (other than for normal operation of the MYZONE Belt and the Equipment and except to the extent permitted by applicable law), reproduce, translate, adapt, vary or modify the System Software nor to communicate the same to any third-party without MYZONE’s prior written consent;
5.2.2. to use the System Software only on the Equipment (with the exception that the App may be used on a Device), and not to remove, add to, change or otherwise tamper with any copyright notice, legend or logo appearing in or on the Software or the medium upon which it resides;
5.2.3. not to create any work based on or in any way derived from the MYZONE System or MYZONE Materials.
5.3. The Licence hereby granted shall continue in force unless and until terminated in accordance with these Terms.
5.4. All rights not expressly granted to the User under this Agreement are reserved by MYZONE or by its licensors.
6. SUPPORT SERVICES
The User will be provided with Support Services from the Facility to which their MYZONE belt is registered.
7.1. MYZONE does not warrant that the use of the System Software will be uninterrupted or error-free.
7.2. The User acknowledges that the System Software has not been developed to meet their individual requirements.
7.3. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by applicable law, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
7.4. MYZONE warrants that it has used commercially reasonable efforts to check the System Software for Malware, but MYZONE cannot and does not warrant that the System Software will be free from all known Malware.
8.2. MYZONE requires that each Facility shall use all information collected from a User’s use of the MYZONE Belt solely for the proper operation of the MYZONE System and that it shall not at any time during or after expiry or termination of the Agreement disclose the same, whether directly or indirectly, to any third-party without MYZONE’s prior written consent. The User should however satisfy himself/herself that he/she is content with the way in which their Facility handles their data and that it conforms with applicable data protection legislation.
9.1. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other:
9.1.1. if the other party commits a material breach of any provision of these Terms or any terms or policy in force from time to time governing access to and use of any website through which the User may access the MYZONE System or any MYZONE service and, in the case of a breach capable of remedy, fails to remedy the breach within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
9.1.2. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
9.2. On termination of this Agreement for any reason:
9.2.1. the Licence shall immediately terminate, and the User shall have no right to further access or use the MYZONE System; and
9.2.2. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
9.2.3. The obligations of the User under Clause 5 of these Terms shall survive termination.
10. MYZONE’S LIABILITY
10.1. This Clause 10 prevails over all other clauses in the Agreement.
10.2. MYZONE does not exclude or limit its liability to the User for:
10.2.1. death or personal injury caused by its negligence;
10.2.2. fraud or fraudulent misrepresentation; or
10.2.3. breach of third party Intellectual Property Rights.
10.3. The liability of MYZONE in respect of loss or damage to tangible property of the User caused by its negligence shall not exceed one million (1,000,000) pounds.
10.4. Subject to the provisions of Clauses 10.2 and 10.3, the aggregate liability of MYZONE in respect of any claim by the User under these Terms shall not exceed the cost to the User of purchasing a MYZONE Belt, however that liability arises including (without limitation) breach of contract, tort, misrepresentation or breach of statutory duty.
10.5. MYZONE shall not be liable to the User for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission.
10.6. MYZONE shall not be liable for any deletion, destruction, damage, or other loss of any User data not attributable to any reckless or negligent act or omission on the part of MYZONE or any person acting on its behalf.
10.7. The User hereby acknowledges that:
10.7.1. MYZONE’s obligations under the Agreement accord with the User’s expectations and are fair and reasonable;
10.7.2. some limitation of liability is to be expected; and
10.7.3. the limitations of liability are fair and reasonable in the light of the nature of the products / services supplied.
10.8. In the absence of fraud, no oral or written information or advice given by MYZONE shall create a warranty or give rise to any other liability other than as expressly assumed in these Terms.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. The User acknowledges that any and all Intellectual Property Rights used or subsisting in or in connection with the MYZONE Belt, the MYZONE System including the System Software, Equipment and other parts thereof (as developed from time to time) are and shall be the sole property of MYZONE or their respective manufacturer or licensor, and the User shall not during or at any time after the completion, expiry or termination of the Agreement in any way question or dispute the ownership thereof. Except to the extent expressly provided for in the Agreement, all Intellectual Property Rights shall remain the property of the party owning or creating the same.
11.2. The User will not have, or acquire, any right of ownership in or title to any data uploaded by them to, or generated in the course of their use of, a MYZONE Belt or the MYZONE System.
12. FORCE MAJEURE
12.1. Neither MYZONE nor any of its employees agents or sub-contractors shall be deemed in breach of these Terms or under any liability whatsoever to the User for failure or delay in performing any obligation under these Terms resulting from circumstances beyond its reasonable control including any failure or interruption of the internet or other communication system owned or controlled by third parties.
12.2. MYZONE will not be liable for any defect in or failure of any product or services not provided by or on behalf of MYZONE (a “Third Party Default”), and shall not be liable for any delay to or interruption or failure of the MYZONE System to the extent that such delay, interruption or failure is attributable to a Third Party Default.
Failure or neglect by MYZONE to enforce at any time any of the terms of the Agreement shall not be construed nor shall be deemed to be a waiver of MYZONE’s rights hereunder nor in any way affect the validity of the whole or any part of the Agreement nor prejudice MYZONE’s rights to take subsequent action.
In the event that any or any part of the Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining Terms which shall continue to be valid and enforceable to the fullest extent permitted by law.
15. ENTIRE AGREEMENT
15.1. These Terms, and any documents referred to in them, constitute the whole agreement between the parties (the “Agreement”) and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover whether or not in writing, and whether existing prior to or at the same time as this Agreement.
15.2. Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on and shall have no remedy in respect of any statement of fact or opinion, any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether or not party to the Agreement) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement. Nothing in this Clause 15 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
16. THIRD PARTY RIGHTS
The Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, any other person.
17. CHANGES TO THE TERMS
MYZONE reserves the right to alter these Terms at any time. You should check this page from time to time in order to make yourself aware of any changes we make. If we decide to change our Terms, we will post those changes on this page, send an email notifying you of any changes or display a message on our website, and/or update the Terms modification date below.
18. GOVERNING LAW AND JURISDICTION
18.1. The Agreement and any disputes or claims arising out of or in connection therewith will be governed by and construed in accordance with the laws of England.
18.2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement.
Last modified on April 20, 2015