Last Updated as of May 9th, 2022
The following General Terms and Conditions - Studio are intended for an international use with our customers. Hyperhuman products and services are intended for a global fitness community, where all our customers and/or users are subject to the same rules. We do not provide localized terms and conditions regardless of the jurisdiction where our customers are from.
Please read these General Terms and Conditions - Studio (“GTC-S”) carefully. Hyperhuman S.R.L. and its subsidiaries (“Hyperhuman”, “we”, “us” or the “Provider”) provides an online fitness community and related products, services, content and features. By registering as a member or by visiting, browsing, or using our website, software applications and/or our services in any way, you fully accept and agree to be bound by these GTC-S, which form a binding contract between you and Hyperhuman.
I. Definitions and Interpretation
Unless otherwise defined herein, or the context otherwise dictates, capitalized terms used in these GTC-S shall have the indicated meanings set forth below:
“Access IDs” means the unique identification names and corresponding passwords assigned to a Hyperhuman Customer and the Trainers and Trainees who have been authorised to access and use the Services procured by such Hyperhuman Customer and allowing such persons to access and use the Services, and “Access ID” shall be construed accordingly.
“Agents” means, with respect to a Party, such Party’s agents, employees, consultants, contractors and/or other authorized representatives, and “Agent” shall be construed accordingly.
“Content” means any material posted on, submitted on, uploaded to, made available to and/or appearing on the Services, including without limitation, data, information, text, graphics, photos, videos, charts, or location information.
“Fee Schedule” means the Provider’s fee schedule, as provided by the Provider to certain users of the Services from time to time, setting out the cost of the respective Usage Plans, and/or the cost of the respective In-Application Purchases, as applicable.
“In-Application Purchases” means the supplementary products, services and/or functionality offered for sale by the Provider, which is not otherwise included in the cost of the Usage Plan subscribed to by a Hyperhuman Customer.
“Parties” means the parties to the Terms of Service, and “Party” shall be construed accordingly.
“Services” means the services offered or made available by the Provider, including without limitation the Hyperhuman software as a service platform, and any website, application or widget associated therewith, as modified by the Provider by way of Updates from time to time. In essence, Hyperhuman is a smart content production platform for the health & fitness industry. Our AI-powered platform is specially designed for the health & fitness industry to offer the most streamlined path for creating and distributing on-demand video content on any channel and format. By using the services made available through our AI-powered platform, you can easily create and instantly publish health and fitness video content, making it universally accessible and reusable.
“Trainee” means a person directly or indirectly accessing or making use of the Services procured by a Hyperhuman Customer as a trainee, including without limitation, for the purpose of accessing, obtaining or otherwise acquiring fitness training services from the Hyperhuman Customer and/or a Trainer, and “Trainees” shall be construed accordingly.
“Trainer” means a person directly or indirectly accessing or making use of the Services procured by a Hyperhuman Customer as a trainer, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training services to one or more Trainees, and “Trainers” shall be construed accordingly.
“Trial Usage Plans” means the free or discounted Usage Plans, and “Trial Usage Plan” shall be construed accordingly.
“Hyperhuman Customer” means a person who procures Services from the Provider, including without limitation, by placing an order for a specific Usage Plan with the Provider, thereby allowing access to, and use of, such Services by the Hyperhuman Customer and the related Trainers and Trainees, and “Hyperhuman Customers” shall be construed accordingly.
“Updates” means versions of the Services that contain functional enhancements, modifications, error corrections and/or fixes relating to the Services, and “Update” shall be construed accordingly.
“Usage Plans” means the access plans to the Services offered for sale or, with respect to certain Trial Usage Plans, on a no-charge basis, by the Provider to Hyperhuman Customers, each such plan allowing the Hyperhuman Customer and a certain set number of Trainers and Trainees to access and use the Services or certain features thereof procured by the Hyperhuman Customer, through the use of Access IDs, and “Usage Plan” shall be construed accordingly.
“you”, “your” and/or “yourself” means either the Hyperhuman Customer, Trainer or Trainee entering into the Terms of Service, as applicable. In this respect, for the avoidance of doubt, please note that any person using the Services will have to comply with all obligations provided by these GTC-S, as applicable in order to optimally safeguard the rights and legitimate interests of Hyperhuman, regardless of whether they are a Hyperhuman Customer, Trainer, Trainee or third-party.
“Your Content” means Content posted, submitted, made available, uploaded and/or displayed on or through the Services by you or your Agents, whether directly or through third party sites, applications or products, including without limitation any media (including photos, videos and accompanying music), fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any and all information you upload or make available through any document management features of the Services.
- We reserve the right to, at our sole discretion, amend the GTC-S at any time and without notice, the most current version of which shall always be available at http://hyperhuman.cc/legalStudio. You acknowledge and agree that the continued use of the Services by you or your Agents, following any amendment of the GTC-S, shall constitute your assent to, and acceptance of, such amended terms and conditions. When significant amendments to the GTC-S are made, we will try to notify you in advance. However, please note that it is your obligation to periodically check the GTC-S and ensure that you are complying to the latest version.
- Subject to the GTC-S, if you do not agree to the GTC-S, or any subsequently amended term or condition thereof, you and your Agents cannot use the Services, and any GTC-S previously entered into will be considered unilaterally terminated by you pursuant to Section XI.1, effective immediately and without any other formalities.
III. Special Consents and Acknowledgements
You acknowledge and agree that:
- If you have an emergency, any health concern or need to obtain medical advice, you should refrain from using the Services and the Content and should immediately contact your physician, health specialist or go to the nearest hospital;
- The information contained within the Services and the Content is intended to be general in nature, nothing contained within the Services or the Content constitutes medical advice and you should not rely on anything contained within the Services or the Content as a substitute for appropriate and timely contact with your physician or any other required health specialist;
- Hyperhuman does not make any representations or warranties with respect to: (a) Content forming part of or provided through the Services, including without limitation work-out plans, exercise videos, and other similar content, whether or not provided by or on behalf of Hyperhuman and (b) Trainers, including without limitation the quality or certification levels thereof, and that interactions with Trainers through the Services or otherwise is at your sole discretion and risk;
- You should never change or stop any course of medical treatment without first consulting your physician;
- You are solely responsible for the health and fitness Content you provide when using the Services and for the associated health risks which your Content or use of the Services might cause to you or other persons; and
- Participating in an exercise program or diet can cause injury, and you choose to do so entirely at your own risk.
IV. Right to Use the Services
- All right, title, interest, ownership rights and intellectual property rights in and to the Services and the trademarks of Hyperhuman, are and shall remain our exclusive property and our licensors’, as applicable.
- Because creating and publishing Your Content is made possible through the use of our AI-powered platform and Services, you fully and irrevocably agree that Hyperhuman has co-ownership of all and any copyright and/or intellectual property rights related to Your Content (which you make public) and is entitled, at its sole discretion, to edit, store and subsequently use Your Content, including by selling or licensing it to third parties, without the need for any prior approval from you and without any royalty, indemnification or fee being owed to you by Hyperhuman or any other person. To this end, you hereby waive any right to restrict in any way our use of Your Content based on personal data protection applicable regulations. Should such waiving be prohibited, in full or in part, by the law, and you try to restrict, in any way, the rights of Hyperhuman to use Your Content by invoking personal data protection rights you might claim to have, Hyperhuman, as co-owner of copyright and intellectual property rights, will be entitled to forbid you any use of Your Content, in any private or public means of communication. In this case, your further use of Your Content and/or failure to comply will constitute a copyright infringement and will entitle Hyperhuman to damages.
- We reserve all rights to the Services not expressly granted to you herein, and without limiting the generality of the foregoing, nothing in the GTC-S grants to you, by implication, estoppel, or otherwise, any license or right to use the Services, any Content other than Your Content and/or our name, domain names, trademarks, logos, or other distinctive brand features, other than as expressly set out in the GTC-S.
- Notwithstanding any other term of the GTC-S, including without limitation Section IV.1, no Hyperhuman Customer, Trainer or Trainee shall be allowed or permitted to access or make use of the Services, until such Hyperhuman Customer, Trainer or Trainee has accepted the most current version of the GTC-S.
V. Information and Access IDs
- In order to use the Services, you must provide certain information through the Services, including without limitation your full legal name, physical address, email address and phone number. You may furthermore be asked to disclose your credit card details, payment processor account information and certain other information with respect to the payment of Fees and Charges (in each case as defined below) and other financial transactions facilitated by the Services. You represent and warrant that all information you provide to us through the Services, and otherwise, shall be true, accurate, current and complete, and you shall update such information as necessary to maintain its truth and accuracy. You furthermore represent and warrant that at no point shall you impersonate any person or entity or misrepresent any affiliation of a person or entity.
- You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use your best efforts to prevent unauthorized access to, or use of, the Services; (iii) notify us promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by us; (v) if you are a Hyperhuman Customer, ensure that only the Trainers and Trainees who have been authorized to do so obtain Access IDs from us, subject to, and in compliance with, the Usage Plan you subscribe to at such time; and (vi) if you are a Hyperhuman Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third parties, unless agreed to in writing by us.
VI. General Use of the Services - Permissions and Restrictions
- You shall not use the Services to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right.
- You shall not copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services.
- You shall not use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services. You shall not collect or harvest any information in an automatic, bulk or systematic way, including any personally identifiable information, from the Services or Content.
- You shall not interfere with, or attempt to interfere with, the Services or the networks or services connected to the Services, whether through the use of viruses, bots, worms, or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware, or otherwise permit such activity.
- You shall use the Services in accordance with the GTC-S and any and all applicable laws and regulations. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates this provision, including without limitation, taking legal action or any action set out in Section XI.2.
VII. Your Content
- Due to the fact that creating and publishing Your Content is made possible through our AI-powered platform and innovative software, for free or at an extremely affordable price, allowing you to easily create a library of health and fitness videos which can be reused, in full or in part, to create new Content and to help develop your business and/or customer reach, you hereby acknowledge and agree that Hyperhuman will receive co-ownership of all rights, title, interest, ownership rights and intellectual property rights in and to Your Content which you have made public. This means that Hyperhuman is entitled, in perpetuity, without the need for any formality or prior approval from you and without owing you any royalty, indemnification or fee, to:
- duplicate Your Content and store it on a Hyperhuman owned server (this means that even if you delete Your Content, we can still use the copied version);
- use Your Content for promotional activities in organic and/or paid channels, on any platform and for distribution to any types of customers including but not limited to business or other service providers (digital, printed, tv, radio, and any other support);
- use Your Content for commercial purposes, including the reselling of it to third parties, the licensing of it to third parties, the direct and indirect monetization (with ads or by selling it to end consumers);
- edit Your Content in any way we want and eventually to combine it with other licensed videos or videos produced by us or third parties in order to eventually create new and original Content from it.
For the avoidance of doubt, you are a co-owner of Your Content and you can monetize on it by using it within our platform or elsewhere, at your sole discretion. We do not acquire any type of exclusivity of Your Content in its original format. However, Hyperhuman will be the sole proprietary of any Content that is based on Your Content but was edited and/or re-shaped in any form by us.
- Unless otherwise expressly set out in these GTC-S or required for the optimal use of Your Content as per Article VII. 1 above, Your Content which you keep private and your trademarks are and shall remain your property, your Agents’ property and/or the property of its or their respective licensors, as applicable. Notwithstanding the foregoing, you hereby acknowledge and agree that some or all of Your Content may be inaccessible on or through the Services, including without limitation, due to an event set out in Sections XV and XXI.1.(iv).
- You hereby acknowledge and agree that Your Content may be disclosed to others in accordance with these GTC-S and the default privacy settings or the privacy settings you have selected from your profile, utilized features and general functionality of the Services, and as such may be accessible to others including without limitation to: (i) your Agents; (ii) other users of the Services; (iii) Hyperhuman and our Agents; (iv) third-party service providers and their Agents; and (v) any other person to whom any of the foregoing persons have granted access to Your Content. We shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Services is not shared between Hyperhuman Customers (unless you select otherwise), but you acknowledge and agree that Hyperhuman cannot and does not guarantee any confidentiality with respect to Your Content whatsoever.
- You represent and warrant that you own or have all of the necessary licenses, rights, consents and permissions to use and authorize us to use all patent, trademark, trade secret, copyright and other proprietary rights in and to any and all of Your Content, to permit inclusion and use of Your Content in the manner contemplated by the Services and these GTC-S without violating, infringing or appropriating any person’s privacy rights, publicity rights, copyrights, trademark rights, contractual rights or any other legal right. You hereby grant us an irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of Your Content, in accordance with these GTC-S and the obligations you have undertaken for using the Services. If, in any case Hyperhuman uses Your Content, we will be held in any way liable for infringing on copyright or other intellectual property rights of a third-party, you will have the obligation to fully indemnify Hyperhuman for any prejudice we incur.
- You may not transmit any Content and we reserve the right to, with or without notice, at our sole discretion, to terminate or suspend our contract / Services and remove Your Content for any reason whatsoever, if Your Content is or could be considered unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, the following: (i) unlawful or promoting unlawful activity; (ii) defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups; (iii) spam, machine – or randomly – generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling; (iv) containing or installing any viruses, worms, malware, trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third person; (v) infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights; (vi) impersonating any person or entity including Hyperhuman and its employees or representatives; (vii) violating the privacy of any third person; (viii) false information and features; (ix) soliciting personal information from anyone under 18; (x) interfering or attempting to interfere with the proper working of the Services, disrupting or attempting to disrupt the normal flow of dialogue with an excessive number of messages (flooding attack) to the Services, preventing or attempting to prevent others from using the Services or otherwise negatively affects other persons’ ability to use the Services.
- You acknowledge and agree that Hyperhuman typically does not, and has no obligation to, review, censor or edit Your Content or any other Content, or the contents of any third-party site or application, but may at our sole discretion do so at any time. We do not make any guarantees about the accuracy, currency, reliability, suitability, effectiveness, quality or correct use of Your Content (including without limitation any fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third-party site, application or product and any information you upload or otherwise make available through any document management features of the Services). You acknowledge and agree that Hyperhuman does not endorse Your Content or any other Content, the contents of any third-party site or application or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection therewith. You acknowledge and agree that we will bear no responsibility for the content, privacy policies, or practices of any third-party, including without limitation, any third-party service provider which may host Content.
- Hyperhuman may contract a third party to store Content, including Your Content, and, while these GTC-S are in effect and you have an active account for access to the Services, will use commercially reasonable efforts to store and back up such Content at reasonable intervals as may be determined by us at our sole discretion. However, if Your Content is important to you, please note that you have to make your own interim back-ups of all of Your Content, including without limitation any and all Content you upload or otherwise make available through the document management features of the Services. Following any cancellation of your account, we will be under no obligation to store Your Content and may delete your account and Your Content immediately upon such cancellation. Notwithstanding anything to the contrary set forth in these GTC-S, we shall have no liability or responsibility for any loss or damage, however caused, arising from any loss of Your Content.
- If you are a Service Provider and you receive Content or other information through the Services that constitutes the Personal Information of a Trainee, including without limitation any fitness or health tracking data or nutritional data of a Trainee, you agree to only use and disclose such information for the purpose of providing fitness training and related services to the respective Trainee, and to use reasonable means appropriate to the sensitivity of such information to protect it from unauthorized access, collection, use and disclosure. If the Personal Information you receive is important to you, please make back-ups. Clause VII.7 will apply accordingly.
VIII. Intellectual Property – Copyright, Trademark and Celebrity Material
- If you are an intellectual property owner or an agent thereof and believe that either (a) Content available on the Services or (b) a material or activity contained on an online location to which the Services have referred or linked users, infringes upon your intellectual property rights, you may submit a notification informing us of the alleged infringement. To do so, you have to provide our Copyright Agent with the following information in writing: a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services; identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link); information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; clear and complete indication of the allegedly breached applicable legal provision(s) on which you ground your claim/complaint; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The notification has to be submitted to:
Copyright Manager - Dan Nica, Hyperhuman S.R.L.
Str. Plugarilor nr. 8G 500473 Brasov, Romania
- You acknowledge that if you fail to comply with all of the requirements of this Section, your notification may not be valid. Emails or notices sent to us without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
- Hyperhuman also responds to complaints that Content infringes trademarks or celebrity material. Generally, trademarks include logos, brand names, and trade dress, which constitutes the distinctive visual appearance of a product or its packaging.
- Please note that all individuals, especially celebrities, have the right to control the use of their personal image and information, which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Consequently, although you may be a fan, you should be aware that you risk infringing celebrity rights if you use a celebrity name or likeness on the Services and you do not have the celebrity's permission. This can be applicable for other individuals as well, not just celebrities. You will be solely responsible for any damage incurred by your failure to respect trademark, celebrity material or any other image rights and you will have to cover in full any indemnification or compensation owed for such damage.
- If you are a trademark owner, a celebrity or a person who believes that your rights have been infringed on the Services, please submit a notification of infringement to our Agent indicated in this Section. Clause VIII.1 will apply accordingly.
- When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the European Patent and Trademark Office or other national trademark office. Please also provide the location on the Services where you believe the infringement is allegedly occurring.
IX. Third Party Services
The Services may provide you with access to services (including video content related services) provided by third parties (each a "Third Party Service"). Please be aware that your access to and use of Third Party Services and the information, data and other content available through Third Party Services are subject to applicable third party service agreements or terms and conditions. Third Party Services are independent from us and the Services, and we do not endorse, and have no responsibility or liability for or control over, Third Party Services. Your use of Third Party Services and your dealings with the owners or operators of Third Party Services is at your own risk, and you will not be entitled to make any claim against us arising from, connected with, or relating to your use of Third Party Services or your dealings with the owners or operators of Third Party Services.
You acknowledge and agree that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data, information and other output or feedback which you and your Agents provide to us related to the Services, to us or to our business, including without limitation in any user forums made available by us, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Services by you and your Agents (“Feedback”), shall become our property without any compensation or other consideration payable to you or your Agents, and you do so of your own free will and volition. We may or may not, in our sole discretion, use the Feedback, commercialize the Feedback and/or incorporate the Feedback in whatever form or derivative into the Services, its other products and services, or any future versions or derivatives of the foregoing. You shall and do hereby assign, and shall cause the assignment of, all rights on a worldwide basis in perpetuity to Hyperhuman in any and all Feedback and, as applicable, shall and do hereby waive, and shall cause the waiver of, all moral rights therein and thereto.
XI. Termination, Modification and Suspension
- Subject to paying all due fees (where applicable), you may terminate our contractual relationship at any time and for any reason by initiating and completing the account cancellation process set out at email@example.com and discontinuing your use of the Services.
- Hyperhuman may, at its sole discretion, at any time and for any reason, with or without notice: (i) ban any computer or device from accessing the Services; (ii) prevent any person from accessing the Services; (iii) terminate, modify, suspend or discontinue any Usage Plan, Access ID, GTC-S or Services; (iv) remove any of Your Content; and/or (v) change your Usage Plan to a Trial Usage Plan.
- The right to terminate this contract for good cause remains unaffected in the case of either Party. In particular, we are entitled to terminate this contract with immediate effect, without court intervention or any other formality, and to cancel your user account, if you seriously or repeatedly breach the provisions of the law, of the user contract and/or these GTC, or if you are in arrears with your payment obligations. In case the contract is terminated due to your fault, we reserve the right to delete or keep all the information, data and Content connected to your account based solely on our assessment of what would be in our best interest.
- Pursuant to Clause XI.2. above, we are entitled to terminate this contract and cancel your account without having to state any reasons or give you any notice. In this case, if the termination was not due to good cause or your fault, any fee or amount you have paid us for the Services will be refunded to you pro rata to the remaining period until the end of the term for the subscription. For this refund we will use the same payment method you have used.
XII. Personal Data
I hereby agree that, upon beginning my Hyperhuman journey and provided that I make no changes to my privacy settings, all Hyperhuman users will be able to view my profile, my training data, my posts, my training spots, etc., without special permission. This makes it easier to follow me and/or support me during my journey with comments and motivation. If I do not want this anymore, I can set my privacy settings to private at any time, which only allows select athletes to access the previously specified information. I understand that all privacy settings I make will only apply for the future. All personal data processed up to the moment I change my privacy settings will be considered lawful and according to my will and Hyperhuman will have the right to use it freely, according to these GTC-S, especially in its co-owner capacity as per Clause VII above.
XIII. Warranty Disclaimer
- The Services are provided on an “as is” and “as available” basis and you acknowledge and agree that your use of the Services and all Content forming part of or related to the Services (including without limitation any work-out plans, exercise videos or similar Content provided by or on behalf of us or any service provider), and any and all interactions between you and service providers through the Services or otherwise, shall in all cases be at your sole discretion and risk. To the fullest extent permitted by law, Hyperhuman and its officers, directors, employees, and Agents, disclaim all warranties and conditions, express or implied or statutory, in connection with the Services and your use thereof, including without limitation any implied warranties or conditions of merchantability, fitness for a particular purpose, accuracy, completeness, performance, hardware compatibility, quiet enjoyment, title and non-infringement. No advice or information, whether written or oral, obtained from Hyperhuman or its officers, directors, employees or Agents or through the Services shall create any warranty or condition not expressly stated in these GTC-S.
- Hyperhuman makes no warranties or representations of any kind about the accuracy or completeness of any sites, applications, pages or services linked to or through the Services. Hyperhuman does not warrant, endorse, guarantee, or assume responsibility for, any product or service advertised or offered by a third-party through the Services or any hyperlinked service or website featured in any user submission, banner, sponsor message or other advertising. We shall not be a party to or in any way be responsible for monitoring any transaction between you and any other user of the Services or any third-party providers of any product or service.
XIV. Limitation of Liability
- In no event shall Hyperhuman and its officers, directors, employees, or Agents directly or indirectly, be liable to you for any indirect, incidental, special, punitive or consequential damages or loss of revenue, income, profit, reputation, goodwill or customers whatsoever resulting from your use of or access to the Services or any content (including without limitation any work-out plans, exercise videos or similar content provided by or on behalf of us or any service provider), including without limitation resulting from any: (i) errors, mistakes, inaccuracies or omissions in the Services; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Services or any Content; (iii) unauthorized access to or use of our servers and/or any and all personal information or other information stored therein or thereon; (iv) interruption or cessation of transmission to or from the Services; (v) termination of access to the Services or removal of any Content by Hyperhuman; (vi) bugs, viruses, trojan horses, etc., which may be transmitted to or through the Services by any third-party; or (vii) errors, mistakes, inaccuracies or omissions in any Content or for any loss or damage of any kind incurred as a result of your use of any Content, whether the foregoing is based on warranty, contract, tort, misrepresentation or any other legal theory, and whether or not the affected parties are aware or have been advised of the possibility of such damages.
- Hyperhuman does not control Content and does not guarantee the accuracy or integrity of such Content. You specifically acknowledge and agree that Hyperhuman shall not be liable in any way for any Content including but not limited to any errors or omissions or the defamatory, offensive, or illegal conduct of any third-party and that the risk of harm or damage from the foregoing rests entirely with you.
- You acknowledge and agree that, with respect to any dispute related to the GTC-S or the Services you hereby expressly accept the jurisdiction of the competent Romanian court in Bucharest. Jurisdiction of any other court is expressly excluded.
- All foregoing limitations and exclusions of liability shall apply to the fullest extent permitted by the applicable law.
XV. Indemnity by You
You expressly undertake the obligation to defend, indemnify and hold harmless Hyperhuman and its officers, directors, employees and Agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney’s fees) arising from:
- your or your Agents’ use of or access to the Services;
- any third party use of, or access to, your Access ID;
- your or your Agents’ violation of any third-party right, including without limitation your content infringing any intellectual property (including copyright), or privacy right;
- any claim that Your Content caused damage to a third-party;
- any dispute or claim arising between you and your customers (including Trainees) or service providers (including Hyperhuman Customers and Trainers) in any way related to or connected with the Services, including without limitation with respect to products or services procured or purchased through the Services; or
- any fraudulent transactions or charges submitted or permitted by you or on your behalf or in which you participate in connection with your use of the Services, including any payment processing features thereof.
This defense and indemnification obligation shall survive the GTC-S and your and your Agents’ use of the Services.
The GTC-S, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by Hyperhuman without restriction.
XVII. Data Usage and Charges
The Services may use information and data transmission networks operated by third parties to send data, information and Content from a computer or device to our servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Services and/or as a result of data, information and Content submitted or received by your computer or device through the Services.
XVIII. Updates and Availability of Services
You acknowledge and agree that:
- Hyperhuman may from time to time, at its sole discretion, make Updates available to you, but is under no obligation to do so;
- Updates may alter, amend or modify the Services, including without limitation, its nature, scope, features, functionality, operation and Content, and you agree to such Updates being made to the Services from time to time, at our sole discretion;
- Updates may require you to enter into new terms of service or, alternatively, shall be subject to all terms and conditions of the GTC-S; and
- there may be occasions when the Services may be interrupted, including without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
- Nothing in the GTC-S shall be construed to constitute Hyperhuman and yourself as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking (with the exception of co-ownership of the intellectual property rights regarding Your Content as per the provisions of Section VII above). You shall have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of Hyperhuman or waive any right, interest or claim that Hyperhuman may have, other than as expressly set out herein, or with the prior written consent of Hyperhuman.
- These GTC-S are governed by the Romanian law. If there is any dispute between you and Hyperhuman about or involving the Services or the GTC-S, you hereby acknowledge and agree that the dispute shall be governed by and construed in accordance with the laws of Romania, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Bucharest, Romania with respect to any claim, proceeding or action relating to or otherwise arising out of the GTC-S or your access to or use of the Services, howsoever arising. By way of derogation, Hyperhuman will always be entitled to seek and obtain injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
- If any provision of the GTC-S is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the GTC-S, which shall remain in full force and effect. No waiver of any term of the GTC-S shall be deemed a further or continuing waiver of such term or any other term, and Hyperhuman’s failure to assert any right or provision under the GTC-S or the law shall not constitute a waiver of such right or provision.
- The provisions of the GTC-S which by implication from their nature are intended to survive the termination or expiration of the TC-S, shall survive termination or expiration of the GTC-S.
XX. Contact us
You may direct any questions, complaints or claims with respect to the general functionality and operation of the Services to us at firstname.lastname@example.org.