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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Contact Info. Questions about the Platform or the services
offered by Wunup should be directed to support@wunup.app.