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28 June 2016

MOBILE APP TERMS OF USE

Version 1.0

 By accessing and / or using any mobile application designed by LMI (the “App”) you indicate your acceptance of and agree to be bound by:

(1) these terms of use (“Terms of Use”);
(2) the App privacy policy (“Privacy Policy”) found at http://www.lesmills.com/mobile-app-privacy-policy/, which is expressly incorporated here by reference; and

(3) any other policy developed by LMI from time to time and notified on the App or any part of the App, which is expressly incorporated here by reference. 

In these Terms of Use: 

  • "we" or "LMI" means Les Mills International Limited or any Les Mills company subsidiary or authorised distributor (as applicable)
  • "you" means you, the person using our services, or visiting the App
  • "services" means all goods or services we provide to you, including providing you with access to the App. 

PLEASE READ THESE TERMS OF USE CAREFULLY.

These Terms of Use do not alter in any way the terms or conditions of any other agreement you may have or will have with LMI. LMI reserves the right to change or modify these Terms of Use, the Privacy Policy, or any document, policy or guideline incorporated by reference into these Terms of Use at any time and at its sole discretion. If these Terms of Use are changed, we will post (or link to) the new Terms of Use on the App. Any changes or modifications will be effective upon posting of (or linking to) the revised Terms of Use on the App, and your access to and use of the App following the posting of the revised Terms of Use will constitute your acceptance of them. It is your responsibility to check these Terms of Use periodically for changes.

  1. License and App Access

Subject to any rights you may have pursuant to another agreement with LMI and to these Terms of Use, LMI grants you a limited license to access and make personal, non-commercial use only of the App. Any other copying, redistribution, retransmission or publication of any downloaded material is strictly prohibited without the express written consent of LMI. Such grant does not include, without limitation: (a) any resale or commercial use of the App or its content; (b) the collection and use of any product or service listings or descriptions; (c) making derivative uses of the App and its contents; or (d) use of any data mining, robots, or similar data gathering and extraction methods. Except as noted above, you have no right or license by implication, estoppel, or otherwise in or to any patent, trademark, copyright, or proprietary right of LMI or any third party. You may not use, frame or utilise framing techniques to enclose any LMI trademark, logo or other proprietary information (including the images found on the App, the content of any text or the layout/design of any page or form contained on a page) without LMI’s express written consent. Further, you may not use any meta tags or any other "hidden text" utilising a LMI name, trademark, service mark, design, logo or product name without LMI’s express written consent. If you use any part of the App that requires a user name or password, then you are responsible for maintaining the confidentiality of that user name and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. In the event the confidentiality of your account or password is compromised in any manner, you should notify LMI immediately. LMI reserves the right to take any and all action, as it deems necessary or reasonable, to ensure the security of the App and your account including, without limitation, terminating your account, changing your password or requesting additional information to authorise transactions on your account.

Notwithstanding the above, LMI may rely on the authority of anyone accessing your account or using your password and in no event and under no circumstances shall LMI be held liable to you for any liability or damage resulting from or arising out of (i) any action or inaction of LMI under this provision, (ii) any compromise of the confidentiality of your account or password and (iii) any unauthorised access to your account or use of your password. Any unauthorised use of the App will terminate the permission or license granted under these Terms of Use and may violate any applicable laws including copyright, trademark (including trade dress), and communications regulations and statutes. LMI reserves the right to prosecute all violators to the fullest extent of the law.

You may use the App only as intended by LMI. If you do not continue to comply with the terms or conditions of any agreement you may have or will have with LMI (including these Terms of Use) or otherwise meet the criteria set by LMI, LMI reserves the right to take any and all action, as it deems necessary or reasonable, including, without limitation terminating your account or limiting your access to particular parts of the App.

  1. Eligibility

You hereby certify to us that you are at least 13 years old. Use of the App by children under the age of 13 years is strictly prohibited.

  1. Copyright

All content on the App, including, without limitation, the LES MILLS name, the LES MILLS arch device, trade marks, design, text, graphics, pictures, sound files, video files, audio-visual files and other files, and the selection and arrangement thereof ("Materials") and all proprietary rights in the Materials are the sole and exclusive property of LMI. Except as expressly stated in these Terms of Use or in any other agreement you may have with LMI, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including (but not limited to) electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of LMI.

  1. Copyright Complaints

LMI respects the intellectual property of others. If you believe that your work has been copied and has been posted to the App in a way that constitutes copyright infringement, please notify LMI immediately, in writing, and provide the following information:

  • A description of the copyrighted work that you claim has been infringed;
  • A description of the location in the App of the material that you claim has been infringed;
  • Your address, telephone number and e-mail address;
  • Your statement that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law;
  • Your statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner's behalf. LMI’s Copyright Agent for notice of claims of copyright infringement on the App can be reached as follows:
    LMI, PO Box 91137, Auckland Mail Service Centre, New Zealand
    Fax: +649 366 9901
    Email:info@lesmills.com
    Attention: Legal Department
  1. Trademarks and Service Marks

LES MILLS™, the LES MILLS Arch device, SHAPE YOUR WORLD™, BODYATTACK™, BODYBALANCE™, BODYCOMBAT™, BODYFLOW™, BODYBALANCE™, BODYJAM™, BODYPUMP™, BODYSTEP™, BODYVIVE™, RPM™, CLUBCOUNT™, CXWORX™, GRIT™, LES MILLS GRIT™, SH’BAM™, BORN TO MOVE™, SMARTBAR™, SMARTSTEP™, LES MILLS SMARTSTEP™ and all other LMI trade and service marks and logos, and the LMI products and services described in the App, are either trademarks, service marks or registered trademarks of LMI or its authorised agents, and may not be copied, imitated or used, in whole or in part, without the prior written permission of LMI. For the avoidance of doubt, you may not use any of LMI’s trademarks or service marks in any domain names or in any account name or user ID for any social media site or blog. All page headers, LMI custom graphics, button icons, and scripts are the copyright and / or service marks, trademarks, and/or trade dress of LMI and may not be copied, imitated, or used, in whole or in part, without the prior written permission of LMI. LMI’s trade marks, service marks and trade dress may not be used in any manner that is likely to cause confusion amongst the public or in any manner that disparages or discredits LMI. All other trademarks, service marks, registered trademarks, product and service names and company names or logos that appear on the App are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by LMI.

  1. Enforcement

LMI reserves the right but does not assume the obligation to strictly enforce these Terms of Use including, without limitation, by issuing warnings, suspending or terminating service, and/or active investigation, litigation and prosecution in any court or appropriate venue. LMI may access, use and disclose transaction information and any information you upload or transmit to the App as necessary to comply with any law; enforce or apply our distribution, agency or customer agreements; to initiate, render, bill, and collect for services; to protect LMI’s rights or property, or to protect users of the App from fraudulent, abusive, or unlawful use of, or subscription to, such services. Any indirect or attempted violations of these Terms of Use by you, and actual or attempted violations by a third party on your behalf, shall be considered violations of these Terms of Use by you.

  1. Responsibility for Your Conduct.

You remain solely liable for any information you upload or transmit to the App. You agree to indemnify and hold harmless LMI from any claim, action, demand, loss, or damages (including legal fees) made or incurred by any third party arising out of or relating to your conduct, your violation of these Terms of Use, or your violation of any rights of a third party.

  1. Product and Service Descriptions and Pricing

In offering information, products or services on the App LMI attempts to be as accurate as possible. However, LMI does not warrant that information, product and service descriptions or other content of the App is accurate, complete, reliable, current, or error-free. Despite our efforts, it is possible due to computer or other error or cause that a product or service offered on the App may be mispriced or contain an inaccuracy in its description. In the event LMI determines that a product or service is mispriced or contains an inaccurate description, LMI reserves the right to take any action it deems reasonable and necessary, in its sole discretion, to rectify the error. You agree to notify LMI immediately if you become aware of any pricing or descriptive errors or inconsistencies with any products or services you order through the App (if any) and comply with any corrective action taken by LMI. Additional terms and conditions may apply to purchases of products or services (if any) and to specific portions or features of the App. You agree to abide by such other terms and conditions. If there is a conflict between these Terms of Use and the terms posted for or applicable to a specific portion of the App or for any products or services offered on or through the App, the latter terms shall control with respect to your use of that portion of the App or the specific products or services. LMI’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on the App should be construed to alter such agreements. LMI may make changes to any products or services offered on the App, or to the applicable prices for any such products or services, at any time, without notice. The materials on the App with respect to products and services may be out of date, and LMI makes no commitment to update the materials on the App with respect to such products and services.

  1. Communications with LMI

Communications made through the App's email and messaging system shall in no way be deemed to constitute legal notice to LMI or any of its officers, employees, agents or representatives, with respect to any existing or potential claim or cause of action against LMI or any of its agencies, officers, employees, agents or representatives.

  1. Third-Party Links

LMI makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites or services accessible by hyperlink from the App, or third party websites linking to the App. Such linked websites are not under the control of LMI and LMI is not responsible for the content of any such linked website or any link contained in a linked website, or any review, changes or updates to such website. LMI provides these links to you only as a convenience, and the inclusion of any link does not imply any affiliation, endorsement, or adoption by LMI of the website or any information contained in it. When leaving the App, you should be aware that these Terms of Use no longer apply, and, therefore, you should review the applicable terms and policies, including privacy and data gathering practices, of any third party website.

  1. DISCLAIMERS 

(A) WARRANTY DISCLAIMER: THE APP AND THE MATERIALS CONTAINED IN IT ARE PROVIDED BY LMI ON AN "AS IS" AND "AS AVAILABLE" BASIS. LMI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE INFORMATION, MATERIALS, CONTENT, SERVICES AND PRODUCTS ON THE APP. LMI DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF THE APP OR THE MATERIALS IN THE APP ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, SUBJECT TO CORRECTION OR THAT ANY SUCH MATERIALS AVAILABLE FOR DOWNLOAD FROM THE APP ARE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. LMI IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHILE LMI ATTEMPTS TO ENSURE YOUR ACCESS AND USE OF THE APP IS SAFE, LMI CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE APP OR ITS SERVER(S) WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORISED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS) OR OTHERWISE MEETS YOUR REQUIREMENTS. YOU EXPRESSLY AGREE THAT USE OF THE APP, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THE APP, IS AT YOUR SOLE RISK AND RESPONSIBILITY. ANY RELIANCE UPON ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE APP IS AT YOUR SOLE RISK. LMI RESERVES THE RIGHT, IN ITS SOLE DISCRETION, AT ANY TIME AND WITHOUT NOTICE, TO CHANGE ANY AND ALL CONTENT CONTAINED ON THE APP, CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE APP OR TO DENY ACCESS TO THE APP TO ANYONE AT ANYTIME. LMI SHALL HAVE NO LIABILITY ARISING FROM YOUR RELIANCE UPON THE INFORMATION PROVIDED ON THE APP. REFERENCE TO ANY PRODUCTS, SERVICES, PROCESSES, OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER, OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT, SPONSORSHIP OR RECOMMENDATION BY LMI. 
(B) USER’S RESPONSIBILITY AND RISK: IT IS YOUR SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED ON OR THROUGH THE APP OR ON THE INTERNET GENERALLY. THE INTERNET AND WIRELESS DATA SERVICES CONTAIN UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOU ACCESS SUCH MATERIALS AT YOUR RISK. LMI HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS. LMI SHALL HAVE NO LIABILITY TO YOU FOR USAGE CHARGES RELATED TO ANY DEVICE THAT YOU USE TO ACCESS THE APP OR UTILISE ANY OF THE FUNCTIONALITY OR SERVICES OFFERED ON THE APP, INCLUDING, WITHOUT LIMITATION, USAGE CHARGES FOR MOBILE TELEPHONES, PALM OS DEVICES, WINDOWS CE DEVICES, CAR NAVIGATION SYSTEMS, PAGERS, SMARTPHONES AND OTHER DEVICES, WHETHER WIRELESS, WIRELINE, REQUIRING CRADLE SYNCHRONISATION OR OTHERWISE.

  1. INDEMNITY 

YOU AGREE TO INDEMNIFY AND HOLD LMI AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND DISTRIBUTORS, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE LEGAL COSTS, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE APP, VIOLATION OF THESE TERMS OF USE, OR THE INFRINGEMENT BY YOU, OR ANY OTHER USER OF YOUR MEMBER NAME OR PASSWORD, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY.

  1. Third Party Rights

The provisions of the paragraphs entitled Product and Service Descriptions and Pricing, Disclaimers, and Indemnity are for the benefit of LMI and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the App. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.

  1. Termination

These Terms of Use may be terminated by LMI without notice at any time for any reason; provided that you may no longer access or use the App after these Terms of Use have been terminated. The provisions of the paragraphs entitled Copyright, Trademarks and Service Marks, Disclaimers, Indemnity, Third Party Rights, Termination, Enforceability and Admissibility and Miscellaneous shall survive any termination of these Terms of Use.

  1. Enforceability and Admissibility

These Terms of Use will be: (a) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing; (b) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (c) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.

  1. Miscellaneous
  • Non Waiver: LMI's failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right and shall not prevent LMI from subsequently requiring strict compliance by any person with these Terms of Use.
  • Modification: Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms of Use.
  • Assignment by LMI: LMI may assign its rights and duties under these Terms of Use to any party at any time without notice to you.
  • Severability: If any provision of these Terms of Use shall be deemed unlawful, void, or unenforceable for any reason, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.
  • Governing Law: These Terms of Use is governed by the laws of New Zealand. You irrevocably and unconditionally consent and submit to the non-exclusive jurisdiction of the courts of New Zealand over any suit, action or proceeding arising out of this Agreement. Any cause of action or claim you may have with respect to the App must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.