Effective April 20, 2015
YOU AGREE TO BE BOUND BY THESE TERMS AND CONCLUDE A LEGALLY BINDING CONTRACT BASED ON THIS LICENSE AND THESE TERMS WITH p1ng HEALTH INC. YOU ACCEPT THIS LICENSE AND THESE TERMS EXPRESSLY, OR IF WE NOTIFY YOU OF THESE TERMS OR CHANGES HERETO, WHEN YOU USE, OR ACCESS THE P1NG APP, OR IF YOU CONNECT A DEVICE TO ANY P1NG SOFTWARE OR WEBSITE. THIS DOCUMENT CONTAINS IMPORTANT TERMS THAT AFFECT YOUR RIGHTS, INCLUDING DISCLAIMERS, LIMITATIONS OF LIABILITY, A CHOICE OF LAW, A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, THEN DO NOT DOWNLOAD, USE OR ACCESS ANY P1NG DEVICE, P1NG SOFTWARE, WEBSITE OR P1NG APP.
- Use. p1ng Health Inc. provides the p1ng software, p1ng App and p1ng website (collectively the “p1ng Services”) on an “as is” and “as available” basis to lawful owners of a new, original Device (hereinafter “you”). You may not use the p1ng Services unless you lawfully own a Device
p1ng reserves the right to improve and change the p1ng Services and any element thereof at any time, at our sole discretion. p1ng also reserves the right to suspend or discontinue the p1ng Services provided that p1ng Health Inc. shall remain obligated to honor any warranty claims you may have under applicable law or manufacturer warranty statements, if any, to the extent the suspension or termination of the p1ng Services causes your Device to stop functioning as warranted and this causes a breach of warranty.
- System Requirements. Use of the p1ng Services requires a personal computer or mobile device such as a tablet, smart phone or other hardware device capable of running the software and having Bluetooth 4.0 connection capability as well as Internet connectivity or WiFi access that you will have to acquire separately from third parties. Your ability to use the p1ng Services will be affected by the performance of your hardware and Internet Connection. You acknowledge and agree that all such system requirements, which may be changed from time to time, are your responsibility. For most effective use of the p1ng Services, high-speed Internet access is strongly recommended.
- Software. The software products made available through the p1ng Services are licensed, not sold, to you. p1ng Health Inc. may cause the updates to the p1ng App to be downloaded onto your Computer through the p1ng Services, and may also cause the most recent version of the p1ng software not already installed onto your Device to be downloaded onto the Device anytime you are connected to the p1ng Services. By connecting to the p1ng Services, you are authorizing such automatic updating.
Your license rights are non-exclusive, limited, revocable, personal, non-sublicenseable and non-assignable. You may not decompile, disassemble, reverse-engineer or otherwise display any p1ng software or the p1ng App in human-readable form, except to the extent such a restriction is prohibited under applicable mandatory law or third party licensee terms after you have provided p1ng Health Inc. with 45 days prior written notice of your intent to exercise rights in conflict with these Terms to give p1ng Health Inc. an opportunity to find alternative solutions for you. You may not copy, modify, translate, rent, lease, distribute, lend or sell the p1ng software or p1ng App. You may not remove any proprietary notices or labels.
- Accounts. You have to establish an account (“Account”) in order to use certain aspects of the p1ng Services. You are responsible for maintaining the confidentiality and security of your Account.
To protect your privacy, you should not reveal your Account information to anyone else or use anyone else’s Account.
You are entirely responsible for all activities that occur on or through your Account, and we recommend that you regularly reset your password to discourage unauthorized access.
p1ng Health Inc. is not responsible for any losses arising out of the unauthorized use of your Account. We reserve the right to terminate, disable or not provide all normal features for a particular Account if we suspect or becomes aware of any unauthorized or unpermitted use of such Account or any part of the p1ng Services.
- Information and Privacy. When you use your Device and the p1ng Services, you provide information about yourself in the registration process and you cause information relating to your steps, sleep, weight and other aspects of your physical activity and conditions to be transmitted to your Computer and to p1ng Health Inc. For this information to be processed and stored by p1ng Health Inc., and its affiliated and unaffiliated service providers on servers in the United States and other jurisdictions, we provide you with a Privacy and Data Policy regarding p1ng Health Inc’s policies in compliance with applicable law and as amended from time to time as the p1ng Services or applicable laws evolve and change. If you do not wish to have your data processed by p1ng in accordance with our policies and notices, then you must not use the p1ng Services.
- Security. You agree that you will not attempt to, encourage, or assist any other person to, circumvent, modify, reverse-engineer, decompile, disassemble or otherwise tamper with any security technology or software that is part of the p1ng Services or is used to monitor or enforce these Terms. p1ng Health Inc. may implement digital rights management (“DRM”) or other similar security systems that contain measures designed to prevent unauthorized copying of software used with, accessed through or obtained via the p1ng Services. You agree that you shall not access or attempt to access an Account that you are not authorized to access. Violations of system or network security may result in civil or criminal liability.
- Third Party Materials and Web Sites. Certain content and services available through the p1ng Services may from time-to-time include materials from third parties. In addition, for reference purpose only, p1ng Health Inc. may provide links to certain third party web sites or services. While we will attempt to only provide links to authoritative content, p1ng Health Inc. is not responsible for the content published on third-party web sites, nor to examine or evaluate the content for accuracy. Further, p1ng Health Inc. does not warrant or endorse any third party web sites, services or content. p1ng Health Inc. does not assume, and will have no liability or responsibility for any third party products, services, content, materials or web sites. Links to other web sites are provided solely on a reference basis, as a convenience to you. You agree that you will not use any third party products, services, web sites or other materials in a manner that would infringe or violate the rights of any other party, and that p1ng Health Inc. has no liability or responsibility for your use of any third party products, services, web sites or other materials. You agree to defend, indemnify and hold harmless p1ng Health Inc. and its affiliates, and their respective officers, directors, employees, agents, and representatives from any and all claims arising out of your use of any third party products, services, web sites, or material of any kind.
- Intellectual Property
9.1 Ownership. The p1ng Services contains proprietary information and material that is owned by p1ng Health Inc. and/or its licensors, and is protected by applicable intellectual property and other laws, including, but not limited to, domestic and international copyright laws. p1ng Health Inc. reserve title, ownership and all rights and interests in the p1ng Services, except as expressly stated and licensed in these Terms. You may not use the p1ng Services or any information and materials contained therein in any way whatsoever except for use of the p1ng Services in compliance with these Terms. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the p1ng Services or the Software or Device, in any manner, nor shall you exploit the p1ng Services or the Software or Device in any unauthorized way whatsoever, including, but not limited to trespass or burdening network capacity. THE USE OF THE SOFTWARE OR ANY PART OF THE p1ng SERVICES, EXCEPT AS EXPRESSLY PERMITTED IN THESE TERMS, IS STRICTLY PROHIBITED, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES.
9.2 Removal of Content or Features. Notwithstanding any other provision of these Terms, p1ng Health Inc. and its licensors reserve the right to change, suspend, remove or disable access to any content, features or other materials comprising a part of the p1ng Services at any time without notice. In no event will p1ng Health Inc. be liable for the removal of or disabling of access to any such content, features or materials. p1ng Health Inc. may also impose limits on the use of or access to certain features or portions of the p1ng Services, without notice or liability.
9.3 Copyright and Trademarks. All p1ng Health Inc. logos and branding marks used in connection with the p1ng Device or Services are property, service marks, copyrights or trademarks of p1ng Health Inc. Other trademarks, service marks, graphics, and logos used in connection with the p1ng Services may be the trademarks of their respective owners. p1ng Health Inc. does not grant you any right of use or license with respect to any such materials.
- Compliance with Laws. The p1ng Services is operated by p1ng Health Inc. from its offices in Canada and other locations. You agree to comply with all local, state, federal, and national laws, statutes, ordinances and regulations that apply to your use of the p1ng Services.
- Enforcement. p1ng Health Inc. reserves the right to take steps that p1ng Health Inc. believes is reasonably necessary or appropriate to enforce and verify your compliance with these Terms.
- Termination. These Terms and all rights and licenses granted herein are effective from the time you accept these Terms until these Terms are terminated. You may terminate these Terms at any time by permanently ceasing your use of the p1ng Services and closing your Account, provided that the Terms shall continue to govern any past use the p1ng Services and Account. p1ng Health Inc. may suspend or terminate your use of the p1ng Services and Account effective immediately if you breach these Terms or with reasonable notice to you and subject to any warranty claims you may have in case of termination. All obligations of confidentiality and restrictions on use, and all other provisions that may reasonably be interpreted to survive termination of these Terms, will survive termination of these Terms, regardless of the reasons for termination. On termination, you agree to cease all use of the p1ng Services. If you fail to comply with any of the provisions of these Terms, including, but not limited to, failing to provide p1ng Health Inc. with accurate and complete Registration Data, failing to keep your Registration Data private, or infringing or otherwise violating the rights of any third party, p1ng Health Inc., at its sole discretion, without notice to you may: (i) terminate these Terms; (ii) terminate all rights of your Account; and (iii) preclude you from accessing the p1ng Services or any part of it.
- Disclaimer of Warranties and Liability Limitations.
13.1 No Express Warranty in these Terms. p1ng Health Inc. does not extend any express warranties, representations or conditions. Your Device may have been accompanied by a p1ng Health Inc. warranty statement that is posted ator available on request. If this is the case, you understand and agree that (a) the disclaimers in Sections 13.2 through 13.4 shall not limit or reduce your rights under any separately such separate warranty statements, (b) any warranty statements shall only cover basic functionality of your hardware Device and do not cover the p1ng Services or software as such, and (c) THE WARRANTY PERIOD OR STATUTE OF LIMITATION REGARDING ANY IMPLIED WARRANTIES RELATING TO YOUR SHALL BE LIMITED TO THE WARRANTY PERIOD SET FORTH IN THE APPLICABLE WARRANTY STATEMENT, IF AND TO THE MAXIMUM EXTENT SUCH LIMITATION IS PERMISSIBLE UNDER APPLICABLE LAW.
13.2 Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE P1NG SERVICES, SOFTWARE, AND DEVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, P1NG HEALTH INC. PROVIDES THE P1NG SERVICES “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT EXPRESS WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, AND P1NG HEALTH INC. HEREBY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS WITH RESPECT TO THE P1NG SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. P1NG HEALTH INC. AND ITS LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE DEVICE, SOFTWARE OR P1NG SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE P1NG SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE P1NG SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE P1NG SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY SELLER WILL CREATE A WARRANTY OBLIGATION ON P1NG HEALTH INC. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. THE APPLICATION IS NOT INTENDED FOR USE IN ANY ACTIVITIES IN WHICH THE FAILURE OF THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. FURTHER YOU ACKNOWLEDGE THAT P1NG HEALTH INC.’S CONTINUED PROVISION OF THE P1NG SERVICES RELIES UPON THE GENERAL OPERATION OF THE INTERNET AND WORLD WIDE WEB AND CERTAIN FACTORS NECESSARY FOR THE CONTINUOUS OPERATION OF THE INTERNET AND WORLD WIDE WEB ARE BEYOND P1NG HEALTH INC.’S CONTROL.
13.3 Disclaimer of Losses And Intrusions. P1NG HEALTH INC. DOES NOT REPRESENT OR GUARANTEE THAT THE P1NG SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND P1NG HEALTH INC. DISCLAIMS ANY LIABILITY RELATING THERETO.
13.4 Information. YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF ANY INFORMATION IN CONNECTION WITH THE P1NG SERVICES IS AT YOUR SOLE RISK. P1NG HEALTH INC. HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
- Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT P1NG HEALTH INC., ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS ARE NOT LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU THROUGH YOUR USE OF THE P1NG SERVICES, SOFTWARE OR DEVICE, INCLUDING ANY LOSS OF DATA OR DAMAGE TO YOUR PROPERTY OR POSSESSIONS, WHETHER OR NOT P1NG HEALTH INC. OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL P1NG HEALTH INC. OR ITS LICENSORS TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS (USD $50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY OF THE REMEDY PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
- Copyright and other Infringements. You shall not upload any infringing, illegal or inappropriate content or data into the p1ng Services.
- Dispute Resolution And Binding Arbitration Provision
17.1 Definitions. As used in this Arbitration Provision, the terms “p1ng Health Inc.,” “we,” “us,” and “our” refer to p1ng Health Inc., including its subsidiaries and agents; the terms “you” and “your” refer to you as an individual as well as other individuals you allow to access or use the p1ng Services or Device, and any legal entity you control, work for, or represent when you access or use the p1ng Services or Device. The word “Products” means your access to and/or use of any p1ng Services, Device, materials, p1ng Health Inc. website, advertisement or promotion and any product, service, or software that you obtain from or through p1ng Health Inc. The word “Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arises from or relate to the Products. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
17.2 Informal Efforts to Resolve Dispute. If a dispute arises between you and p1ng Health Inc., you should first attempt to resolve it by contacting our Customer Service Center or by sending the details of your complaint, including your contact information for a response, to the address listed below. We will attempt in good faith to resolve all Claims submitted this way within thirty (30) days of receipt.
17.3 Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that you may assert Claims in a small claims court in Victoria, British Columbia, Canada.
17.4 Arbitration and Exclusion of Class Action or Class Arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award to you on an individual basis the same damages and forms of relief as a court could (including injunctive and declaratory relief as well as statutory damages), and must follow the law and terms of these Terms as a court would. Any arbitration under these Terms will take place on an individual basis, in the jurisdiction of Victoria, British Columbia, Canada; class arbitrations and class actions and private attorney general actions are not permitted.
17.5 Opt Out Provision. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST CEASE USE OF THE P1NG SOFTWARE SERVICES AND NOTIFY P1NG HEALTH INC. IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THESE TERMS. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH P1NG HEALTH INC., AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO CONTINUE SERVICES.
17.6 Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be the responsibility of the complainant.
17.7 Arbitration Rules. The arbitration will be conducted in the jurisdiction of Victoria British Columbia, and you and we agree to submit to the jurisdiction aforementioned jurisdiction in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
17.8 Selection of Arbitrator. A single arbitrator who is an attorney-at-law with at least fifteen (15) years’ experience in consumer and technology transactions will conduct the arbitration. Arbitration will be held exclusively in the English language.
17.9 Time Restriction. YOU MUST FILE A COMPLAINT WITH A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
17.10 Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in certain circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language. The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims.
17.11 Recovery and Attorneys’ Fees. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys’ fees or costs. If your use of the Products was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and p1ng Health Inc. waives any right it may have to seek an award of attorneys’ fees and expenses from you in connection with any arbitration of Claims between us.
17.12 Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
17.13 Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall not survive termination of your access to or use of any Products and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
p1ng Health Inc. Customer Service :
1110 Maple Road
North Saanich, BC
- Licensee worldwide. You are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
19.1. These Terms constitute the entire agreement between you and p1ng Health Inc. relating to the p1ng Services and govern your use of the p1ng Services and Device and completely replace any prior or contemporaneous agreements between you and p1ng Health Inc. regarding your use of the p1ng Services and Device.
19.2. The failure of p1ng Health Inc. to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision, which will still be available to p1ng Health Inc.
19.3. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of these Terms will continue to be valid and enforceable.
19.4. The Terms and any dispute arising out of or in connection with these Terms, the p1ng Services or Device shall be governed by the laws of the Province of British Columbia, Canada, except conflicts of law provisions and except for the rules of the Convention for the International Sale of Goods (“CISG”).