Actively Terms of Service
Last modified: August 1, 2018
The following terms and conditions (these “Terms”) govern your use of the mobile services and software provided on or in connection with the applications, website and services (collectively the "Services") made available by Actively Inc. (“Actively”). These Terms apply to all visitors, users, and others who access the Services ("Users"). Users include (1) merchants (including, but not limited to, fitness studios, clubs, gyms, and instructors / trainers, collectively the "Facilities," and each, a “Facility”) in connection with the Facilities’ business and practices, including, but not limited to, to manage or promote service offerings, sessions, pricing, schedules and scheduling, and cancellation policies; and (2) athletes and customers of Facilities (including all non-merchant individuals or entities who access and/or use the Services, “Participants”).
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING ANY SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, AS THEY MAY BE MODIFIED OR AMENDED FROM TIME TO TIME BY ACTIVELY AT THE ACTIVELY.AI WEBSITE (THE “SITE”) IN ITS DISCRETION. ANY SUCH AMENDMENTS TO THESE TERMS BECOME EFFECTIVE AT THE TIME THEY ARE POSTED TO THE SITE, AND EACH TIME YOU ACCESS OR USE ANY SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AS AMENDED. IF YOU DO NOT AGREE, YOU SHOULD DISCONTINUE USE OF THE SERVICES IMMEDIATELY.
The words “we”, “us” and “our” means Actively. The words “you” and “your” refers to the person accessing or using the Services subject to these Terms. To the extent you access or use the Services as an employee, manager, member or agent of any entity, you also accept these Terms on behalf of such employer, principal or other entity.
Your use of the services / mobile text messaging
- We may make available software to access the Services via a mobile device ("Mobile Software"). To use the Mobile Software, you must have a mobile device that is compatible with the Mobile Software. Actively does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider. You agree that you are solely responsible for any such charges.
- You agree that Actively may contact you at that mobile number using nonautomated or automated technology to send you text messages to: (i) service your accounts and facilitate booking Sessions with Facilities or otherwise communicate with you for customer service purposes, (ii) investigate or prevent fraud, (iii) provide you with information you requested, or (iv) communicate programs, deals, or offers, that may be of interest to you.
- The specific amount of text messages may vary depending on how you use the Actively Services. The Services may not be available on all carriers and carrier participation could change.
- Actively does not charge Participants for SMS texting services, but message and data rates may apply. By providing your consent to receive text messages from Actively (or not opting out), you approve any such charges from your mobile carrier. You represent that you are the owner or authorized user of the mobile device associated with the telephone number you designate to receive messages from the applicable SMS texting service. You also represent that you are authorized to approve the applicable carrier charges.
- You agree the information you provide to us will be true and accurate and kept up to date by you. You agree not to enter false information or impersonate any other person when you use the Services. You must be 18 years of age or older to use the Services.
- If applicable, It is your sole responsibility to keep all user IDs, passwords and other means of access to the Services within your possession or control confidential and secure from unauthorized use. Actively will not be liable for any losses caused by any unauthorized use of your account.
- Your account is non-transferrable and may not be sold, combined or otherwise shared with any other person. If you violate any of these terms and limitations we may terminate your account and, without limitation, you may forfeit any unused credits, vouchers or other rights or interests you may have. If we terminate your account, you may not re-enroll or join under a new account unless we formally invite you. If you commit fraud or falsify information in connection with your use of the Site or the Services, your access to the Services will be terminated immediately and we reserve the right to hold you liable for any and all damages we suffer, to pursue legal action through relevant local and national law enforcement authorities and to notify your Internet Service Provider and/or Mobile Carrier of any fraudulent activity we associate with you or your use of the Site or Services.
- You agree not to use or permit the use of the Services directly or indirectly for any of the following:
- Disclosing personally identifying information or private information of any person without his or her consent;
- Posting or sending material that is grossly offensive, obscene, lewd, lascivious, pornographic, profane or violent, harassing or otherwise objectionable, libelous, defamatory or threatening or that promotes or encourages hatred, violence, racism or criminal conduct;
- Uploading or spreading computer viruses, worms, Trojan horses, malware, spyware or other harmful code;
- Infringing the intellectual property rights or misappropriating trade secrets of any third party;
- Fraudulently inducing the purchase of goods or services or disclosure of information by any User;
- Selling or marketing products or services that are unlawful;
- Selling or marketing products or services or soliciting funds or information in a manner that is prohibited by applicable law or regulation; or
- Deceiving any User regarding the identity of you or your organization or the nature or quality of any products or services promoted through the Services.
Facilities using Actively
- In addition to all the other Terms set forth here, the following terms (Sections 13-22) apply to you if you are, or you represent, a Facility and utilize the Services to allow Participants to book, claim, reserve, or purchase classes, sessions, appointments, and experiences at your Facility (collectively, “Sessions”).
- You are the offeror, issuer and seller of all Sessions and shall be responsible for performance of all obligations to Users and compliance with applicable laws, rules and regulations. Without limiting the generality of the foregoing, you agree to ensure that your Sessions and the sale thereof comply with any and all applicable laws, including but not limited to the United States Credit Card Act of 2009 (if applicable), and any laws governing the imposition of expiration dates, service charges or dormancy fees. To the extent required by applicable escheat or abandoned or unclaimed property laws, you shall be solely responsible for and agree to report and pay over to the applicable local, state, provincial, territorial or federal governmental agency any unredeemed cash value of any Sessions sold under these Terms.
- You agree to honor all Sessions redeemed by Users in accordance with the posted terms and conditions. You agree that in connection with a User’s redemption of a Session, you will not impose any extra or additional fees, charges, conditions or restrictions that contradict or are inconsistent with the posted terms of pertaining to such Session offering.
- You grant Actively and its affiliates a non-exclusive worldwide royalty-free license and right to use, reproduce, display, distribute and transmit the content of your Sessions, the name and location of your business, its logo and any trademarks and any photographs, graphics, artwork, text and other content you provide to us or have made publicly available ("Your Content") in connection with the booking of any Session in any and all media, formats or platforms.
- Subject to applicable law and in accordance with our policies and procedures, if we provide you with access to any Participant’s personally identifiable information or financial transaction data (“Participant Data”), you agree to use such data solely to verify redemption of the Session claimed by such Participant or fulfill the terms and conditions of the Session, or otherwise only with the Participant's consent. You agree to protect the security of Participant Data and comply with all laws relating to the processing and use of such Participant Data. If you become aware of or suspect any unauthorized access to or use of Participant Data or any confidential information of ours, you shall immediately notify us, and shall cooperate with us in the investigation of such breach and the mitigation of any damages. You agree to bear all associated costs and expenses incurred by us to comply with applicable laws (including without limitation any data breach laws) or arising from any unauthorized access or acquisition of Participant Data while such data is in your possession or control. Notwithstanding the foregoing, you may use and maintain in your discretion, subject to applicable law, any Participant Data you obtain independently through your business and not from us or your use of the Services.
- You represent and warrant that: (a) you have the right, power and authority to enter into these Terms; (b) if required by applicable law, your business is registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided; (c) the terms and conditions of the sale of Sessions, including any discounts, do not and will not violate any applicable local, state, provincial, territorial, national or federal law, statute, rule, regulation, or order; (d) you own all right, title and interest in the Your Content (as defined herein) and have the right to grant licenses in Your Content as stated in these Terms; (e) Your Content does not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party; and (f) you will not resell, broker or otherwise disclose any User Data (as defined below) to any third party, in whole or in part, for any purpose whatsoever (other than in connection with the sale of your business), and will not copy or otherwise reproduce any User Data except as contemplated under these Terms.
- To the extent allowed under applicable law, you agree to defend, indemnify and hold harmless Actively, its affiliated and related entities, and any of their respective officers, directors, members, managers, agents and employees, from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorney's fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach of these Terms or the representations and warranties made herein; (b) any claim for state sales, use, or similar tax obligations arising from the sale and subsequent redemption of a Session ("Taxes"); (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Session or unredeemed cash values of Sessions or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of the law and/or regulation governing the sale or distribution of goods and/or services offered by you; (e) any claim arising out of or relating to the goods and services provided by you, including but not limited to any claims for false advertising, product defects, personal injury, death, or property damages; and (f) any claim by a Participant relating to any of your Sessions or the sale thereof, including, but not limited to, injuries and/or illnesses that may have been caused by you or any third party involved in providing the Sessions on your behalf.
- We undertake no responsibility for complaints or any claims in connection with the Sessions or the sale thereof. However, we may terminate or suspend your access to or use of the Services in our discretion if we determine that the nature or volume of such complaints warrant such action.
- You agree that we may establish and modify from time to time in our discretion limits and policies relating to your use of the Services.
Booking at facilities
- Under these Terms, you may use the Site or Services to book, claim, reserve, or purchase classes, sessions, appointments, and experiences (collectively, “Sessions”) at or from participating Facilities. The Facility is the issuer of the Session and is fully and solely responsible for all goods and services promised and provided. We may offer you the opportunity to purchase Sessions at Facilities. The Facilities, and not Actively, will process the resulting purchases and issue credit card receipts to you. Actively disclaims all claims related to the purchase of Sessions and the processing of credit cards. You, Participant, agree that the Facility is responsible for any and all injuries, illnesses, damages, losses, claims, liabilities and costs (“Liabilities”) such Facility may cause you or any third party to suffer, directly or indirectly, in full or in part, whether related to the use, purchase, or redemption of a Session or not, and you agree not to assert claims for such Liabilities against us.
- When you use the Services, you agree to discharge and release Actively and its subsidiaries, affiliates, director, officers, members, managers, employees and agents from any Liabilities arising from or related to any act or omission of a Facility in connection with your purchase, redemption or use of a Session or the services and/or goods the Facility promises or provides.
- By using the Services, you agree to these Terms of Service and by booking a Session, you further agree to any additional terms posted to the confirmation, checkout or other Site page or mobile message containing the Session details before or at the time of booking (the "Session Terms"). In the event of any conflict between these Terms of Service and any Session Terms, the Session Terms with respect to the applicable Session will govern.
- By these Terms we are only providing you with the right to access and use the Services. Actively Inc. retains sole and exclusive ownership of and all right, title, and interest in and to the Services and all materials therein or transferred thereby, including, but not limited to, software, images, text, graphics, logos, trademarks, trade secrets, trade dress, copyrights, and other intellectual property interests) and to all modifications and enhancements of the Services (collectively, the “Actively IP”), subject only to the rights and privileges expressly granted to you under these Terms. The SportsLocate™, Actively™, Actively.ai™ names and logos are trademarks of Actively Inc. and its affiliates. In addition, the Services are presented with a distinctive “look and feel,” and this “look and feel” is the proprietary property of Actively Inc. We reserve all rights in and to the Services not expressly granted under these Terms.
- You agree not to copy, reproduce, download or display the Actively IP or any portion thereof, except in connection with your use of the Services pursuant to these Terms.
- You agree not use, copy, modify, or distribute the Services (electronically or otherwise) or Actively IP, including the source code for any portion of the Services, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by us in writing. You may not modify, reverse engineer, disassemble, decompile, translate, create derivative works from, or otherwise alter the Services. You may not transfer, lease, assign, rent, or sublicense the rights granted to you under these Terms. You may not use any portion of the Services or any standalone utility provided for use with the Services for any purpose other than its intended purpose.
Third-party services and content
- All third-party marks are the properties of their respective owners and may be used by you only in connection with permitted use of the Services and for no other purpose whatsoever.
- You are solely responsible for your interactions with other Users, including your participation in promotions or deals found through our Services. We reserve the right, but have no obligation, to monitor disputes between you and other Users, such as between a Participant and a Facility. Actively shall have no liability for your interactions with other Users, or for any User's action or inaction.
- We will not knowingly publish content in violation of applicable copyright law. If you believe content has been displayed, reproduced, printed or otherwise distributed by us through this website in violation of any third-party copyright, please notify us in writing. Send your notice to Actively Inc., 23 Fairfield Rd Unit T Greenwich CT 06830-4887
attention: chief legal officer, and include the following:
- electronic or physical signature of a person authorized to act for the copyright owner
- description of the copyrighted work
- description of where the infringing content is located on this website
- your office or home address, telephone number and email address
- a statement of good faith belief that the use of the work is not permitted by the copyright owner, and
- a statement under penalty of perjury that the above is true and you are authorized to act for the owner.
THE SERVICES, INCLUDING THE MOBILE SOFTWARE, SITE CONTENT, ANALYTICS OR REPORTS, MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR ERRORS. TRANSACTIONS MAY BE INTERRUPTED OR CORRUPTED DURING TRANSMISSION. OUR SYSTEMS MAY NOT PREVENT THE CORRUPTION OR LOSS OF YOUR CONTENT OR DATA. THE SERVICES MAY NOT BE COMPATIBLE WITH YOUR MOBILE DEVICE OR COMPUTER SYSTEMS OR ACCESSIBLE TO ALL USERS OR THROUGH ALL YOUR WEBSITES. WE ASSUME NO LIABILITY FOR SUCH INCIDENTS OR CONDITIONS. ALL SERVICES, INCLUDING BUT NOT LIMITED TO SITE CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, OR (II) SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
WE MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY FACILITY OR DEAL OFFERED THROUGH THE SERVICES OR SITE, OR REGARDING ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ANY FACILITY THROUGH THE SITE OR OTHERWISE.
Limitation of liability
- EXCEPT TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT A CLAIM TO BE MADE SUBJECT TO THE WITHIN LIMITATIONS, ACTIVELY, ITS DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNATIVE OR INCIDENTAL DAMAGES OF ANY KIND RELATING TO YOUR USE OF THE SERVICES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNTS ACTUALLY PAID TO ACTIVELY BY YOU FOR THE SERVICES IN CONNECTION WITH WHICH SUCH DAMAGES AROSE.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF CLAIMS OR DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO ALL LIABILITIES.
- You agree to indemnify and hold harmless Actively, its subsidiaries, affiliates, directors, officers, employees, and agents, from and against any and all liabilities, damages, losses, costs or expenses (including reasonable attorneys’ fees) arising from or relating to any third party claim, action or demand asserted against any of the foregoing parties based on: (a) any breach of these Terms by you or anyone accessing the Services using your login credentials; (b) any violation of law, regulation or third party rights in connection with your use of the Services; or (c) any complaint by any User relating to Your Content or Sessions.
- Your right to access and use the Services shall terminate immediately upon your breach of any Terms.
- If you are provided with any standalone software utilities for use with the Services, you acknowledge that these utilities may be subject to regulation by local laws and United States government agencies which prohibit export or diversion of certain products or information about the products to certain countries and certain persons. You represent and warrant that you will not export or re-export such software in violation of these regulations to a national destination prohibited under these regulations or to any person to whom exports, re-exports or transfers are prohibited under these regulations.
- You acknowledge that your breach of any of the provisions of these Terms may cause immediate and irreparable harm to Actively for which we may not have an adequate remedy in money or damages. We will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and will be entitled to recover from you the costs incurred in seeking such an injunction. Our right to obtain injunctive relief will not limit our right to seek or obtain further remedies.
- Should any part of these Terms be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of these Terms should not invalidate the remaining portions thereof, and they shall remain in full force and effect.
- These Terms shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its choice of law principles and the applicable federal laws of the United States. Without prejudice to our right to injunctive relief from any court of competent jurisdiction, YOU AGREE TO SUBMIT ANY AND ALL CLAIMS AGAINST US ARISING FROM OR RELATING TO THESE TERMS TO BINDING ARBITRATION in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall be conducted before a single arbitrator, selected pursuant to the AAA Rules, in Fairfield County, Connecticut.
- Nothing express or implied in these Terms is intended to confer, nor shall anything herein confer, upon any person other than the parties and their respective permitted successors or assigns, any rights, remedies, obligations or liabilities whatsoever. You may not assign any of your rights hereunder and any purported assignment by you shall be invalid. We may assign any and all rights or obligations under these Terms in our discretion.
© 2018 Actively Inc.