Terms of Service

Terms and Conditions

The Wunup mobile application (the “App”), the www.wunup.app website (the “Website”), and the related online and mobile services (“Services” and, collectively with the Website and the App, the “Platform”) are made available by Wunup LLC, a North Dakota limited liability company (“Wunup”), subject to these Terms and Conditions (“Terms and Conditions”).

The Platform acts as a neutral facilitator, allowing users to create or join fitness challenges, including one-on-one or group challenges where a group of users compete in prescribed physical activity challenges in pursuit of monetary and non-monetary rewards, as verified and mediated by the Platform. These Terms and Conditions apply to all Users on both web-based and mobile platforms, including Users who are simply viewing content available via the Platform, Users utilizing free services available on the Platform, and Users who have engaged for paid Platform services (“Users” and “you” and through similar words such as “your,” etc.). Not all terms shall apply to all types of Users where specified in the Terms and Conditions. Some terms may only apply to certain portions of the Platform.

BY ACCESSING ANY PART OF THE PLATFORM, YOU ARE AGREEING TO THE THEN-CURRENT TERMS AND CONDITIONS, THE TERMS OF OUR PRIVACY NOTICE (the “Privacy Notice”), AND ANY CODE OF CONDUCT AND APPLICABLE CHALLENGE RULES (the “Competition Standards”), ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, you should not use the Platform. If you otherwise engage with Wunup for specific services through a subsequent agreement, that agreement shall control and supersede these Terms and Conditions. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE APP OR CONTINUE TO ACCESS OR USE THE SERVICES OR PLATFORM, AND DO NOT REGISTER FOR AN ACCOUNT.

THESE TERMS AND CONDITIONS ALSO CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS.

We reserve the right to refuse a User’s access to the Platform for any reason, in our sole discretion. In addition, in our sole discretion, we may suspend or terminate a User’s account for any reason. Such termination of your account will result in your loss of access to the Platform. We will not be liable for any decision to suspend, terminate or refuse service under any circumstances.

The Platform is controlled and offered by us from our facilities in the United States of America, and is intended for use only by persons located within the United States. Notwithstanding the foregoing, the monetary rewards features of the Platform are not intended for use within any state of the United States where such use is prohibited. Those who access or use the Platform from jurisdictions outside the United States do so at their own volition and are responsible for compliance with local law.

Wunup is not a medical organization.  The Platform is not intended as a substitute for professional medical advice, diagnosis, or treatment, and does not constitute and should not be construed as medical or other professional advice. You acknowledge that Wunup has no knowledge of any User’s health condition(s). You alone are responsible for any actions you take that may have any health or other risks, and you must satisfy yourself, including consulting with a physician, before participating in any Wunup challenge. Never disregard professional medical advice or delay in seeking it because of something that you have read, seen, or heard on our Platform. Any advice and comments as to health and wellness issues on Wunup’s Platform or marketing materials, is for informational purposes only.

  1. Compliance. To ensure you remain in compliance with these Terms and Conditions, Wunup recommends reviewing the current Terms and Conditions each time you access or use the Platform. All access to and use of the Platform, user accounts and the materials, content, information, and data contained on or provided through the Platform are subject to compliance with these Terms and Conditions and all applicable laws, rules, and regulations. If you have any questions or comments regarding these Terms and Conditions or the Platform, please contact Wunup at the contact information listed below.
  2. General Use; Not Games of Chance.

     The Platform is made available, subject to these Terms and Conditions, to allow you to (i) obtain information about the Company’s product offerings (including fitness challenges mediated via the Platform), (ii) register for a Wunup user account, and (iii) engage with the various interactive properties available on the Platform. Subject to these Terms and Conditions, Wunup grants you a limited, non-exclusive, non-transferable and revocable license to download, access and use the Platform solely for the applicable purposes described in these Terms and Conditions, solely for your personal, non-commercial benefit. Except as otherwise expressly set forth herein, you shall have no other rights to the Platform, and no other rights shall be implied.

     WUNUP DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY FITNESS CHALLENGE OR OTHER ACTIVITY THAT UTILIZES THE SERVICES.

     Wunup fitness challenges are not games of chance. The intent of the Platform is to reward Participants only for actions over which they have substantial control or influence. The use of the Platform to reward Users for actions over which they have no or only limited control or influence, or in states where peer-to-peer fitness challenges like those facilitated via the Platform are deemed to be games of chance, is strictly prohibited. Moreover, Wunup’s Platform is not intended to enable Users to engage in fitness competitions in states where such activity would require licensure or other governmental approvals.

     Certain features of the Platform and Services, including those involving facilitation of the exchange of monetary value in connection with fitness challenges, cannot be provided and the agreement described in these Terms and Conditions cannot be performed without Wunup processing data about you, and other Wunup users, including your location data. In some circumstances, your location data may be used to determine eligibility or ineligibility to use a given feature. Processing of the data you share with us, including location data, is essential to the Services we provide and a necessary part of our performance of the agreement we have with you.

  1. Account Creation. In order to access the competition features of the Platform, you will have to create an Account. You may not have more than one (1) active Account at one time without Wunup’s permission and you must access the Platform and non-public portions of the Website and App through your Account. The security and confidentiality of your Account username and password is your sole responsibility. You shall ensure that no unauthorized person shall have access to your Account, username, or password and shall immediately notify Wunup of any unauthorized access or use of which you become aware. You agree to bear all responsibility and liability for all actions under or through your Account as well as all fees and/or charges incurred from the use of your Account, whether authorized or unauthorized. You may update your Account by changing the Account settings.
  2. Registration Data. You agree to (a) provide accurate, current, and complete information about yourself as may be prompted by any registration forms for the Platform (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to the Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your Account. Notwithstanding anything to the contrary, you hereby authorize Wunup and its affiliates, contractors and suppliers to use, copy, sublicense and disclose Registration Data (i) as part of providing the Platform services, (ii) if required by applicable law, where necessary to enforce these Terms and Conditions and/or to protect any of Wunup’s or other parties’ legal rights, (iii) in an aggregated form which does not include your identifying information, and (iv) as permitted by Wunup’s Privacy Notice. You are solely responsible to obtain any necessary rights, authorizations and consents with respect to your Registration Data, including, without limitation, to grant the foregoing rights to Wunup and its affiliates, contractors and suppliers. You hereby consent to and authorize Wunup to send notices regarding the Platform via email instead of other means (such as postal mail). By participating in a Wunup challenge you acknowledge that during the challenge you will automatically receive certain messages related to the challenge. We default to opt-out because we believe these challenge-related messages are fundamental to the experience of using the Platform. You may control your notifications preferences from the notification settings on your mobile device, and opt-out or (or opt back into) messaging at any time. Please see our Privacy Policy for how we protect the private data that you entrust to us.
  3. Fees.  The fees we charge you, including challenge, deposit, transaction and/or withdrawal fees, and any associated payment and refund requirements, if any, will be set forth in the various challenge rules and FAQs. Some of these fees may be collected by our payment processing partners on our behalf at various times including challenge creation or joining, challenge payouts, or funds withdrawal. These fees may be changed or waived from time to time. Fees may include direct and fixed transaction fees as well as a percentage of payouts. We reserve the right, at any time, to institute fees or charges for any previously free service, provided that such changes will not apply to Platform services accessed prior to the time of the change.
  4. User Content. The Platform may contain User-generated or provided data, content, and materials (“User Content”). As described further in the Privacy Notice, User Content may include, but is not limited to, your photos or other profile information, comments on blogs or other public forums, reviews of merchandise or other purchases, reviews of the Platform, and ideas, concepts, feedback or related information concerning the Platform that you submit directly to us.
    User Content is the sole responsibility of the User that submitted that User Content. Wunup does not control User Content generated or provided by Users and is under no circumstances responsible or liable in any way for any User Content that is made available through the Platform. Wunup does not endorse any User Content, and does not warrant or guarantee the integrity, truthfulness, accuracy or quality of any User Content. Wunup reserves the right (but is not obligated) to edit or remove any User Content in whole or part, at any time and for any or no reason. You agree that Wunup is not liable for any loss or damage of any kind resulting from availability, access and/or use of any User Content. You further agree that the User Content that you may generate or provide through the Platform shall be truthful and not misleading.
    Notwithstanding the foregoing, Wunup may rely on User Content to expand the Platform, especially your submissions of photos, challenge outcomes, other statistics, as applicable. You acknowledge and agree that your submitted User Content will be made available to other Users of the Platform (subject to the features of the Platform which may restrict what Users can view and access your User Content). You hereby grant to Wunup and its affiliates, contractors, and suppliers a nonexclusive, perpetual, irrevocable, world-wide, royalty-free, assignable and sublicensable (through multiple tiers) license to reproduce, copy, use, host, store, sublicense, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, your submitted User Content and your name, voice and likeness (to the extent they are part of the User Content), (i) in connection with the Platform, as specified under Third Party Licenses and/or for the interoperation of any third party products, (ii) if required by applicable law, where necessary to enforce these Terms and Conditions and/or to protect any of Wunup’s or other parties’ legal rights, (iii) in an aggregated form which does not include your identifying information, (iv) for marketing purposes, and (v) as permitted by Wunup’s Privacy Notice. You are solely responsible to obtain any necessary rights, authorizations and consents with respect to your submitted User Content, including, without limitation, to grant the foregoing rights to Wunup and its affiliates, contractors and suppliers.
    You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem (in our sole discretion) to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (v) contains any information or content that is illegal (including, without limitation, any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets, or other confidential proprietary information, and trademarks or service marks used in an infringing fashion); (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (vii) contains any information or content that you know is not correct and current; or (viii) violates any team, school, sport, league, or other applicable policy, including those related to cheating or ethics.
    You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of privacy. Wunup reserves the right, but is not obligated, to reject and/or remove any User Content that Wunup believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Platform is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
  5. Releases. You acknowledge and agree that (i) you are solely responsible and liable for your interactions with other Users of the Platform, and (ii) Wunup does not control the acts, omissions, policies or procedures of other Users of the Platform. Without limiting the foregoing, you understand the risks associated with the access to and use of the Platform and any User Content and other data, content and materials made available through the Platform, and acknowledge that you are using the Platform and such other data, content and materials at your own risk and that you are personally responsible for verifying their suitability for your needs through your own investigation. To the maximum extent permitted by applicable law, Wunup is not liable for, and you hereby waive, release, relinquish and forever discharge Wunup, its employees, members, managers, governors, suppliers, agents, contractors, affiliates, representatives, successors and assigns (collectively, the “Wunup Parties”), from any and all claims, counterclaims, demands, causes of action, suits, liabilities, injuries to person or property (including, but not limited to, death, incapacity and disability), damages, losses, costs and expenses, whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, arising out of or related to (a) your access to and use of the Platform, (b) access to and use of any User Content and other data, content and materials made available through the Platform, (c) and your interactions with other Users of the Platform, including via fitness challenges and associated rewards exchanges. You agree to not sue Wunup and the other Wunup Parties, or assist any other person or entity in any suit against Wunup and the other Wunup Parties, with respect to any matters released in this Section. The terms of this release shall also apply to any of your relatives, next of kin, heirs, beneficiaries, employers, successors or assigns who assert or attempt to assert any claims on your or their behalf.
  6. Ownership and Intellectual Property. Except for certain User Content as described herein, all material included on the Platform, including (without limitation) the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) are owned by or licensed to us, subject to copyright and other intellectual property rights under United States and any applicable foreign laws and international conventions. You acknowledge and agree that as between you and Wunup, Wunup is and shall remain the exclusive owner of the Platform, Wunup’s data, information, and Content (expressly excluding User Content, except to the extent otherwise set forth in these Terms and Conditions), and all patent, copyright, trade secret, trademark and other intellectual property rights therein. In addition, the compilation and presentation of the Content on the Platform is subject to copyright owned exclusively by us. Content on the Platform may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, scraped, or otherwise exploited for any other purposes whatsoever without our prior written consent. We reserve all rights, not expressly granted to you, in and to the Platform and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Content obtained through the Platform for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Platform or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Platform or the Content therein. You shall not dispute or challenge or assist any third party to dispute or challenge Wunup’s or its licensors’ ownership of such rights or the validity or enforceability of such rights. Wunup expressly reserves all rights not expressly set forth in these Terms and Conditions.
    If you find or suspect intellectual property infringement with respect to the Platform or User Content, believe that the Platform or any User Content otherwise violate these Terms and Conditions, or have questions, complaints or claims regarding the Platform, please immediately notify Wunup using the contact information located below. Upon receiving such information, Wunup will investigate the matter and/or take appropriate action, in its sole discretion.
  7. Prohibited Uses.  In addition to uses otherwise prohibited by Wunup, these Terms and Conditions or applicable law, you shall not, and you shall not allow any third party to, do any of the following:

     Download, access, use or register for the Platform if you are under eighteen (18) years old.

     Change or delete any copyright or proprietary notices from the Platform.

     Use the Platform other than as permitted by these Terms and Conditions and you agree that you will not use the Platform in a manner inconsistent with the original intent of its design.

     Impersonate or attempt to impersonate Wunup, a Wunup employee, another authorized User, or any other person or entity.

     Access or use the Platform to send unsolicited commercial messages to any person, or to threaten, harm or harass another User’s Account, use and/or access of the Platform, including, but not limited to, attempting to gain access to another User’s Account.

     Access or use the Platform by artificial means or in a manner that, in Wunup’s sole discretion, would inflict an excessive load on Wunup’s or its suppliers’ hardware or software.

     Post, upload or transmit: (i) any data, content or materials meant to market or advertise services or products that are competitive with the Platform, solicit any other Users of the Platform for such purposes and/or use data, content or materials gathered from the Platform for such purposes, (ii) any data, content or materials of any type that infringe or violate any rights of any party, including, but not limited to, any patent, copyright, trademark, trade secret or any proprietary or other right of Wunup or a third party, (iii) any data, content or materials that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy or otherwise violate the rights of Wunup or a third party, and/or (iv) any disabling code (defined as computer code designed to interfere with the normal operation of the Platform or Wunup’s or a third party’s hardware or software) or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Platform or Wunup’s or a third party’s hardware or software.

     Use the Platform for any benchmarking, monitoring or testing availability or performance, or any other business-competitive use, including, but not limited to, creating services, products or software that are substantially similar to the Platform.

     Decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization), modify or create a derivative work of the Platform by any means whatsoever.

     Distribute, disclose or allow use of any portion of the Platform or your Account in any format through any timesharing device, service bureau, network or by any other means, to or by any third party.

     Use or access any data, content or materials for any purpose or in any manner other than real-time viewing (which prohibits, for example, screenshots, downloading and storing) unless expressly permitted by the features of the Platform.

     Use or access the Platform or any data, content or materials provided through the Platform in violation of international, federal, state or local law or other applicable rules or regulations (including, without limitation, any laws regarding money-laundering, bribery, espionage, and/or the export of data or software to and from the US and other countries). If you access the Platform from outside the United States, you do so at your own risk and responsibility for compliance with laws of your jurisdiction.

     To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us (in our sole discretion), may harm Wunup or users of the Platform or expose them to liability.

  1. Accessibility and Updates. You are solely responsible for providing, maintaining and ensuring compatibility with the access requirements for the Platform, and all hardware, software, electrical or other physical requirements for use of the Platform, including, without limitation, mobile devices (including fitness wearables), telecommunications and internet access, connections, web browsers or other equipment, programs and services required to download, access and use the Platform. To use the Platform, you must have a compatible mobile and/or wearable fitness device (e.g., Apple Watch), and Wunup does not guarantee that the Platform will be compatible with any specific mobile and/or wearable fitness device or operating system version. You are solely responsible for your mobile and/or wearable device data or related charges. Wunup may from time to time issue upgraded versions of the Platform services and may automatically update the version of the Platform services that you are using.
  2. Third Party Content and Products. The Platform may contain links to third party content and other third-party websites that are not owned or controlled by Wunup. Links are provided to online Users solely as a convenience and our inclusion of such links does not imply any endorsement of the information by Wunup. You acknowledge and agree that we have no control over such sites and resources, are not responsible for the availability of such sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, features, services, information or other materials on or available from such sites or resources, or any websites that they may link to (collectively, “Third-Party Content”). We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Content.
    Access to the Platform may require access to and the use of hardware, software, and other proprietary materials from third party suppliers that are subject to license rights, terms and restrictions (collectively, “Third-Party Licenses”). In such event, your rights to the Platform are expressly subordinate and subject to the Third-Party Licenses and you must comply with Third-Party Licenses. Wunup’s rights, as applicable, provided by a third-party supplier may be limited, suspended or terminated for any number of reasons, and your rights accordingly may also be so limited, suspended or terminated. To the extent of any conflict between one or more terms included in these Terms and Conditions and the terms of a Third-Party License, the applicable term(s) of the Third Party-License shall control with respect to the applicable third-party product.
  3. Warranties. You represent and warrant that (i) these Terms and Conditions constitute your legal, valid and binding obligation enforceable against you in accordance with their terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, (ii) you have all requisite authority to enter into these Terms and Conditions, (iii) your agreement to these Terms and Conditions and performance or compliance with the terms of these Terms and Conditions will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which you or your affiliates are bound or to which your properties are subject, (iv) you are the lawful owner of any submitted User Content and your Registration Data, or to the extent you are not the lawful owner, you have all rights necessary for you to provide, upload and make available in submitted User Content and your Registration Data and license it as specified herein, and (v) your submitted User Content and your Registration Data will not violate or in any way infringe on any patent, copyright, trade secret, trademark, intellectual property or other rights of a third party.
  4. Disqualification and Ejection; Termination.

     You acknowledge that Wunup has the absolute and un-appealable right to disqualify and/or eject anyone in a fitness challenge. You may be disqualified and/or ejected for a variety of reasons, including violating Wunup’s Competition Standards or these Terms and Conditions, or for displaying bad sportsmanship in our sole discretion. If you are disqualified or ejected for any reason, you will not receive a refund for any past or current challenges in which you have opted to participate and for which the ability to withdraw has passed.

     Wunup has the right at any time, in its sole discretion and with or without prior notice, to suspend or terminate your access to the Platform or your Account, and to refuse any and all current or future use of all or any portion thereof, for any reason, including, but not limited to, if Wunup believes that you are in violation of any of the provisions of these Terms and Conditions, your Account is being used for fraudulent purposes (with or without your authorization), or the information you have provided is inaccurate, not current or incomplete. Wunup shall also have the right, but not the obligation, at any time to change, remove or discontinue (as applicable) any aspect or feature of the Platform, the Competition Standards, and/or any of the User Content from the Platform, in its sole discretion.

     In the event you desire to terminate your Account you may do so through the Platform or by contacting Wunup as set forth below, provided that if you are in an ongoing challenge you will continue to be bound by the terms of that challenge until that challenge terminates or completes. Upon termination of your Account, all of the information associated with your Account may be retained or deleted without notice, consistent with applicable law. Wunup shall have no liability for such deletion.

  1. Indemnification. To the fullest extent permitted by law, you shall indemnify, defend and hold Wunup and the other Wunup Parties harmless from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, causes of action, charges, costs and expenses (including, but not limited to, attorneys’ fees, disbursements and court costs prior to trial, at trial and on appeal) arising out of or resulting from, or alleged to result from (i) your breach of these Terms and Conditions, (ii) your access to and use of the Platform and its related services, and/or (iii) your Content and your Registration Data; provided, the foregoing provisions of this Section shall not apply to the extent such losses, costs and expenses arise out of the gross negligence or willful misconduct of Wunup.
  2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, WUNUP DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) WITH REGARD TO THE PLATFORM AND RELATED SERVICES, USER CONTENT OR ANY OTHER DATA, CONTENT AND MATERIALS CONTAINED IN OR PROVIDED THROUGH THE SERVICES. THE PLATFORM AND USER CONTENT ARE PROVIDED ON AN “AS IS” BASIS. IF YOU ARE DISSATISFIED WITH THE PLATFORM, USER CONTENT, THESE TERMS AND CONDITIONS OR ANY PORTION OF THE FOREGOING, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM. WUNUP DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE PLATFORM, AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS.
  3. Liability. SUBJECT TO THE OTHER LIMITATIONS AND DISCLAIMERS IN THESE TERMS AND CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WUNUP OR ANY OTHER WUNUP PARTIES BE LIABLE UNDER ANY LEGAL THEORY FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, THE SERVICES OR USER CONTENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WUNUP’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO WUNUP FOR USE OF THE PLATFORM IN THE YEAR PRECEDING THE CLAIM. Any of your claims arising in connection with these Terms and Conditions, the Platform or User Content must be brought within one (1) year of the date that the event giving rise to such action occurred.
  4. Force Majeure. Wunup shall not be responsible for delays or failures of performance resulting from acts beyond its reasonable control. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, third party service providers, lockouts, riots, acts of war, acts of terror, epidemics, pandemics, government regulations, fire, communication line failures, power failures, earthquakes and other disasters.
  5. Personal Information. Wunup may collect your personal and non-personal information when you download, register for, access and/or use the Platform. You agree that Wunup may collect, process, transfer, use and disclose your information in accordance with Wunup’s Privacy Notice which is incorporated herein by reference and deemed a part hereof.
  6. Assignment. You may not assign or transfer these Terms and Conditions, or any of your rights or obligations hereunder, without the prior written consent of Wunup, and any attempted assignment or transfer without Wunup’s prior written consent shall be null and void. Wunup may assign these Terms and Conditions in its sole and absolute discretion, including to an affiliate or the surviving entity or its successor in the event of its merger or the sale of all or substantially all of its assets. All of the terms and provisions of these Terms and Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective personal representatives, estates, heirs, successors and permitted assigns.
  7. Dispute Resolution; Governing Law; Jury Trial and Class Action Waivers.

     Mandatory Arbitration and Waiver of Class Actions. PLEASE READ THIS SECTION CAREFULLY. IT PROVIDES FOR THE USE OF BINDING ARBITRATION TO RESOLVE CERTAIN DISPUTES BETWEEN US AND PROVIDES FOR A WAIVER OF CLASS ACTIONS. The U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. You and the Company each waive the right to a trial by jury and to participate in any class action, in a court or in arbitration, with respect to any claim or dispute covered by this provision. Except as specifically provided below, all disputes, controversies or differences which may arise between the parties hereto out of or in relation to or in connection with this Agreement shall be finally settled by binding arbitration in the State of Delaware in accordance with the consumer procedures and rules of the American Arbitration Association and shall not involve any class action in a court or in arbitration. You acknowledge that that you have been advised that you may consult with an attorney in deciding whether to accept these Terms and Conditions with their obligation to arbitrate and their waiver of class actions and of trial by jury. This agreement to arbitrate shall not apply, at the option of the Company, to the extent you have in any manner violated or threatened to violate the Company’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights), and the Company may seek injunctive relief in court to prevent unauthorized use of such rights and shall not be required to arbitrate such dispute.

     Governing Law; Venue and Jurisdiction. By visiting or using the Platform, you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms and Conditions and any dispute of any sort that might arise between you and the Company or any of our affiliates. With respect to any disputes or claims not subject to arbitration (only as specifically set forth herein), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts in Delaware, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts in Delaware.

  1. Legal Notices. Any notices or other communications provided by Wunup under these Terms and Conditions, including those regarding modifications to these Terms and Conditions, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
  2. Miscellaneous. Section headings are not to be considered part of these Terms and Conditions. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof. Except as otherwise set forth herein, if any provision of these Terms and Conditions is found void or unenforceable, this will not affect the validity of the balance of these Terms and Conditions, which shall remain valid and enforceable, and the invalid or unenforceable provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision. Except as stated herein, nothing in these Terms and Conditions is intended to confer upon any person other than the parties hereto, and their respective personal representatives, estates, heirs, successors and permitted assigns, any rights or remedies under or by reason of these Terms and Conditions. There is no agency, partnership, joint venture or employment relationship–created by these Terms and Conditions or otherwise–between you, us, or any other User of the Platform. Any and all rights and obligations contained in these Terms and Conditions which by their nature and/or context are intended to survive termination of these Terms and Conditions shall so survive, including, but not limited to, perpetual license grants, indemnification, limitations of liability and disclaimers. No breach or right under these Terms and Conditions may be waived unless in writing signed by the waiving party.
  3. App Store. This Section 23 only applies to the App. You acknowledge and agree that the availability of the App is dependent on the third party through whom you received access to the App license, including, without limitation, the Apple App Store or Google Play (each an “App Store”).

     These Terms and Conditions are only between you and Wunup, not an App Store. As between Wunup and an App Store, Wunup is solely responsible for the App and its content.

     Your license to the App set forth in Section 2 above is limited to use of the App on products that you own or control and as permitted by the applicable App Store Terms and Conditions or terms of service.

     To the extent that Wunup is responsible for any maintenance or support services with respect to the App under applicable law, you acknowledge that no App Store has any obligation whatsoever to furnish any such services.

     The App is provided on an “AS-IS” basis. To the extent that any product warranties are not effectively disclaimed by these Terms and Conditions, Wunup is solely responsible for any such product warranties. In the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Store, and, if the App was purchased, such App Store may refund the purchase price for the App to you. To the maximum extent permitted by applicable law, no App Store will have any other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty shall be Wunup’s sole responsibility.

     Your claims are limited by these Terms and Conditions. To the extent you have any claims relating to the App, Wunup, not any App Store, is solely responsible for addressing such claims, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection, privacy or similar legislation.

     Wunup shall not be obligated to indemnify, defend or hold you harmless from any third party claims relating to the App. To the extent that Wunup is responsible to indemnify you under applicable law in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Wunup, not any App Store, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

     You represent and warrant that (i) you are 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) you are not listed on any U.S. Government list of prohibited or restricted parties.

     You must comply with applicable third party terms of agreement when using the Platform, including without limitation any terms of agreement associated with payment processors and wearable fitness devices.

     Each App Store, including its subsidiaries, are third party beneficiaries of these Terms and Use, and upon your acceptance of these Terms and Conditions, each App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary.

  1. Changes to Terms and Conditions. Wunup may modify these Terms and Conditions from time to time by posting an updated version of these Terms and Conditions and changing the “Date Last Modified” above. Such changes shall be effective immediately upon posting updated Terms and Conditions. If you continue to access or use the Platform, you accept such modified terms. If you do not agree to such changes, do not continue to access or use the Platform.
  2. Contact Info. Questions about the Platform or the services offered by Wunup should be directed to support@wunup.app.