Born Tough Trainer Legal

Reporting Claims of Copyright Infringement

At Born Tough Trainer LLC we take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Born Tough Trainer Mobile App (the “Mobile App”) infringe your copyright, you may request removal of those materials (or removal of access to them) from the Mobile App by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

• Your physical or electronic signature.
• Identification of the copyrighted work you believe to have been infringed or if the claim involves multiple works on the Mobile App, a representative list of such works.
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated copyright agent to receive DMCA Notices is:

Robert L. Dughi
Born Tough Trainer LLC
3 Turtle Walk, Key Biscayne, Fl 33149
908-403-7260
[email protected]

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the Mobile App is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

Counter-Notification Procedures

If you believe that material YOU posted on the Mobile App was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent designated below. Pursuant to the DMCA, the Counter-Notice must include substantially the following:

• Your physical or electronic signature.
• An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
• A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
• A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if you reside outside the United States, for any judicial district in which the Mobile App may be found) and that you will accept service from the person (or an agent of that person) who sent the Mobile App the DMCA Notice at issue.

Our designated agent to receive Counter-Notices is:

Robert L. Dughi
Born Tough Trainer LLC
3 Turtle Walk, Key Biscayne, Fl 33149
908-403-7260
[email protected]

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Mobile App was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

Repeat Infringers

It is our policy in appropriate circumstances to disable and/or terminate the Mobile App accounts of users who are repeat infringers.

Born Tough Trainer Mobile App (Trainer’s Version) End User License Agreement

This Mobile App End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Born Tough Trainer LLC, a Florida limited liability company with its office at 3 Turtle Walk, Key Biscayne, Fl 33149 (“Company”). Company and you are sometimes jointly referenced herein as The Parties. This Agreement governs your use of the Born Tough Trainer Mobile App (Trainer’s Version) on the Apple Store Mobile Platform (including all related documentation, the “Mobile App”). This Agreement is between you and the Company, and not with Apple, and it is the Company, not Apple, that is solely responsible for the Mobile App and the content thereof to the extent prescribed in this Agreement. The Mobile App is licensed, not sold, to you.

BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD THE APPLICATION OR PLEASE DELETE IT FROM YOUR MOBILE DEVICE IF YOU HAVE ALREADY DONE SO.

1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and non-transferable, revocable license to:

(a) download, install, and use the Mobile App for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Mobile App’s documentation and as permitted by the Apple App Store Terms of Service, which is accessible at https://borntoughtrainer.com/terms-of-service/

2. License Restrictions. Licensee shall not:

(a)  copy the Mobile App, except as expressly permitted by this Agreement;

(b)  modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile App;

(c)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile App or any part thereof;

(d)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile App, including any copy thereof;

(e)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile App, or any feature or functionality of the Mobile App, to any third party for any reason, including but not limited to by making the Mobile App available on a network where it is capable of being accessed by more than one device at any time;

(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Mobile App;

(g)  use the Mobile App to partake in illegal file-sharing or save, convert, or download media from third party sources (including without limitation Apple Music, YouTube, SoundCloud, Vimeo, etc.) without explicit authorization from those sources.

(h) infringe on third-party terms of agreement when using this Mobile App (e.g. your wireless data service agreement).

3. Reservation of Rights. You acknowledge and agree that the Mobile App is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile App under this Agreement, or any other rights thereto other than to use the Mobile App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Mobile App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Mobile App, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Mobile App. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Mobile App or certain of its features or functionality, and the Mobile App may provide you with opportunities to share information about yourself with others, namely the Athletes, who have used the Trainer Code you provided to them to access the Mobile App’s Interface. All information we collect through or in connection with this Mobile App is subject to our Privacy Policy found athttps://borntoughtrainer.com/privacy-policy/and incorporated herein by reference. By downloading, installing, using, and providing information to or through this Mobile App, you consent to all actions taken by us with respect to your information subject to the Privacy Policy.

5. Updates. Company may from time to time in its sole discretion develop and provide Mobile App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionalities. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular feature or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:

(a)  the Mobile App will automatically download and install all available Updates; or

(b)  you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Mobile App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Mobile App and be subject to all terms and conditions of this Agreement.

The Parties hereby acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App.

6. Third-Party Materials. The Mobile App may display, include, or make available third-party content (including data, information, mobile apps, and other products, services, and/or materials) or provide links to third-party websites or services, including but not limited to materials of your Athletes, who have used your Trainer Code to access the Mobile App’s Interface and with whom you are communicating through the Mobile App (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. If you believe that Third-Party Materials violate your copyright, you may request removal of those materials (or access to them) from the Mobile App by submitting written notification to our copyright agent designated in our Copyright Policy. It is the policy of the Company to terminate the user accounts of repeat infringers.

The Parties hereby acknowledge and agree that, in the event of any third-party claim that Mobile App or your possession and use of the Mobile App infringes a third party’s intellectual property rights, to the extent that it is required to provide indemnification by applicable law, Apple is not responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

7. Term and Termination.

(a)  The term of this Agreement commences when you acknowledge your acceptance of the provisions of this Agreement and will continue in effect until terminated by you or Company as set forth in this Section 7.

(b)  You may terminate this Agreement by deleting the Mobile App and all copies thereof from your Mobile Device.

(c)  Company may terminate this Agreement at any time without notice if it ceases to support the Mobile App, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d)  Upon termination:

 (i)  all rights granted to you under this Agreement will also terminate; and

(ii)  you must cease all use of the Mobile App and delete all copies of the Mobile App from your Mobile Device and account.

(e)  Termination will not limit any of Company’s rights or remedies at law or in equity.

8. Disclaimer of Warranties. THE MOBILE APP IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE MOBILE APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE MOBILE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, OTHER MOBILE APPS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

FURTHERMORE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY ACCEPT AND AGREE THAT APPLE HAS NO WARRANTY OBLIGATION TO YOU WHATSOEVER WITH RESPECT TO THE MOBILE APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY ARE NOT THE RESPONSIBILITY OF APPLE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR COMPANYS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE MOBILE APP OR THE CONTENT AND SERVICES FOR (BY WAY OF ILLUSTRATION AND NOT LIMITATION).

 (a)  PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

 (b)  DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE MOBILE APP (NOT INCLUDING ANY FEES PAID TO THIRD PARTIES)

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

TO THE EXTENT YOU HAVE ANY CLAIM ARISING OUT OF THE USE OF THE MOBILE APP, THE COMPANY AND NOT APPLE IS RESPONSIBLE FOR ANY CLAIMS RELATED TO THE MOBILE APP OR YOUR POSSESSION AND/OR USE OF THE MOBILE APP, INCLUDING BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE MOBILE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND/OR (III) CLAIMS ARISING UNDER CONSUMER PROTECTION, PRIVACY OR SIMILAR LEGISLATION.

NOTHING IN THIS AGREEMENT SHALL BE DEEMED AN ADMISSION THAT YOU MAY HAVE SUCH CLAIMS.

10. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees whether transactional or litigation-related, arising from or relating to your use or misuse of the Mobile App or your breach of this Agreement, including but not limited to the content you submit or make available through the Mobile App.

11. Export Regulation. The Mobile App may be subject to US export control laws, including but not limited to the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Mobile App to, or make the Mobile App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal and other laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Mobile App available outside the US.

12. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original provision, and all other provisions of this Agreement will continue in full force and effect.

13. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida USA without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Mobile App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida, IN EACH CASE located in the city of Miami in Miami-Dade County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

14. Entire Agreement. This Agreement, The Terms of Use and our Privacy Policy constitute the entire agreement between you and the Company with respect to the Mobile App and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Mobile App.

15. US Government Rights. The Mobile App is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefore, you receive only those rights with respect to the Mobile App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

16. Geographic Restrictions. The Company is based in the state of Florida in the United States. We provide this Mobile App for use only by persons located in the United States. We make no claims that the Mobile App or any of its content is accessible or appropriate outside of the United States. Access to the Mobile App may not be legal by certain persons or in certain countries. If you access the Mobile App from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

 

You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and that (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

17. Waiver.No failure to exercise and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

18. Third-Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary thereof.

19. Contact Information. The following is the contact information that can be used by you for all of your inquiries, questions or complaints:

Robert L. Dughi
Born Tough Trainer LLC
3 Turtle Walk, Key Biscayne, Fl 33149
908-403-7260
[email protected]

Born Tough Trainer Mobile App Terms of Use

Last Modified: March 19, 2019

Acceptance of the Terms of Use

These terms of use are entered into by and between You and Born Tough Trainer LLC, a Florida limited liability company with its office at 3 Turtle Walk, Key Biscayne, Fl 33149(“Company”, “we”, or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to and use of the Born Tough Trainer Mobile App (both the Trainer Version and the Athlete Version), including any content, functionality, and services offered on or through the Born Tough Trainer Mobile App (the “Mobile App”),

Please read these Terms of Use carefully before you start to use the Mobile App. By clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use, as well as our Privacy Policy, found at https://borntoughtrainer.com/born-tough-trainer-legal/, incorporated herein by reference.If you do not want to agree to these Terms of Use, or the Privacy Policy, you must not access or use the Mobile App.

This Mobile App is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using this Mobile App, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Mobile App.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Mobile App thereafter. However, any changes to the dispute resolution provisions set out in the Governing Law and Jurisdiction section below will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Mobile App.

Your continued use of the Mobile App following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so that you are aware of any changes, as they are binding on you.

Accessing the Mobile App and Account Security

We reserve the right to withdraw or amend this Mobile App, and any service or material we provide on the Mobile App, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Mobile App is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Mobile App, or the entire Mobile App, to users, including registered users.

You are responsible for:

• Making all arrangements necessary for you to have access to the Mobile App.
• If you are using the Trainer Version of the Mobile App: making all arrangements necessary for the users, with whom you will be communicating through the Mobile App, - as a result of providing them with your Trainer Code, obtained upon registration - to access the Athlete Version of the Mobile App.
• Ensuring that the information you receive from the persons you communicate with through the Mobile App is not misused, made public or viewed by unauthorized third parties.

To access the Mobile App or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Mobile App that all the information you provide on the Mobile App is correct, current, and complete. You agree that all information you provide to register with this Mobile App or otherwise, including but not limited to through the use of any interactive features on the Mobile App, is governed by our Privacy Policy found at https://borntoughtrainer.com/privacy-policy/, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, - not including the Trainer Code that the Trainer will receive upon finalizing his or her registration procedure that he or she is free to share with a pre-determined number of users of the Athlete Version of the Mobile App, that will be communicating with him or her through the Mobile App - you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Mobile App or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you will exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifiers, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

Subscription Fees for Trainer’s Version of the Mobile App

If you have downloaded and are currently intent on using the Trainer’s Version of the Mobile App, the following Subscription Fee Conditions will apply to you:

• For the first 60 (Sixty) Days after your initial download of the Trainer’s Version of the Mobile App (hereinafter – “Free Trial Period”) your use of the Trainer’s Version of the Mobile App will be Free of Charge. Once the Free Trial Period is up you will only be able to continue using the Service by paying in advance for additional usage in accordance with Payment Plans provided below. If you fail to pay for additional usage, your account will be frozen and inaccessible until payment is made.
• Company reserves the right to modify, cancel and/or limit the Free Trial Period without notice at any time.
• After the Free Trial Period the use of the Trainer’s Version of the Mobile App will be subject to the following Payment Plans:

For Trainers with up to 10 Athletes - $49.99 per user per month

For Trainers with 11 to 20 Athletes - $39.99 per user per month

For Trainers with over 20 Athletes - $34.99 per user per month

Any upgrade or downgrade in plan level will result in the new rate being charged at the next billing cycle. There will be no prorating for changes in between the billing cycles. The number of Athletes connected to a Trainer is estimated at the beginning of each new billing cycle.

• A select group of users of the Trainer’s Version of the App in the amount of $19.99 per user per month will be part of the Official Launch and will get special pricing, not to be changed throughout their use of the Mobile App - $19.99 per user per month. The Free Trial Period conditions listed above shall also apply to the members of this select group.
• Company reserves the right to change its pricing terms for the Payment Plans at any time, and Company will notify you in advance of such changes becoming effective. Changes to the pricing terms will not apply retroactively and will only apply for Subscription renewals after such changed pricing terms have been communicated to you. If you do not agree with the changes to the pricing terms for the Payment Plans, then you may choose not to renew your Subscription/cancel your Subscription in your Account Settings.
• Company further reserves the right to provide discounts, deductions, permanent or temporary to any users of the Trainer’s Version of the Mobile App in its sole and ultimate discretion.

Intellectual Property Rights

The Mobile App and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Mobile App for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Mobile App, except as follows:

• You may download, install and use a single copy of the Mobile App to your mobile device solely for your own personal, non-commercial use, provided you agree to be bound by the End User License Agreement, such agreement to be found at https://borntoughtrainer.com/born-tough-trainer-legal/  (Athlete’s Version) and at https://borntoughtrainer.com/born-tough-trainer-legal/ (Trainer’s Version), both incorporated herein by reference.

You must not:

(a)  copy the Mobile App, except as expressly permitted by the End User License Agreement.

(b)  modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile App;

(c)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile App or any part thereof;

(d)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile App, including any copy thereof;

(e)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile App, or any features or functionality of the Mobile App, to any third party for any reason, including by making the Mobile App available on a network where it is capable of being accessed by more than one device at any time;

(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Mobile App.

You must not access or use for any commercial purposes any part of the Mobile App or any services or materials available through the Mobile App.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Mobile App in breach of these Terms of Use, your right to use the Mobile App will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Mobile App or any content on the Mobile App is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Mobile App not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

 

Trademarks

The Company name, the trademarked names “Born Tough” and “Born Tough Trainer”, the Company Logo and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Mobile App are the trademarks of their respective owners.

 

Prohibited Uses

You may use the Mobile App only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Mobile App:

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with our Copyright Policy, found at ___________, incorporated by reference herein and the Content Standards, found below in these Terms of Use.
• To transmit, or procure the sending of, any advertising or promotional material including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
• To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, but not limited to, by using email addresses or other identifiers associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Mobile App, or which, as determined by us, may harm the Company or users of the Mobile App or expose them to liability.

Additionally, you agree not to:

• Use the Mobile App in any manner that could disable, overburden, damage, or impair the Mobile App or interfere with any other party’s use of the Mobile App, including their ability to engage in real time activities through the Mobile App.
• Use any robot, spider, or other automatic device, process, or means to access the Mobile App for any purpose, including monitoring or copying any of the material on the Mobile App.
• Use any manual process to monitor or copy any of the material on the Mobile App or for any other unauthorized purpose without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Mobile App.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Mobile App, the server on which the Mobile App is stored, or any server, computer, or database connected to the Mobile App.
• Attack the Mobile App via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Mobile App.

User Contributions

The Mobile App may contain Messaging Interfaces, chat rooms, personal web pages or profiles, and other interactive features and Tools (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Mobile App, including but not limited to any exchanges of information between the Trainers and Athletes using respective versions of the Mobile App.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Mobile App, you grant us and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

• You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and to our respective licensees, successors, and assigns.
• All of your User Contributions do and will comply with these Terms of Use.

YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR ANY USER CONTRIBUTIONS YOU SUBMIT OR CONTRIBUTE, AND YOU, NOT THE COMPANY, HAVE FULL RESPONSIBILITY FOR SUCH CONTENT, INCLUDING ITS LEGALITY, RELIABILITY, ACCURACY, AND APPROPRIATENESS.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Mobile App.

 

Monitoring and Enforcement; Termination

We have the right to:

• Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
• Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Mobile App or the public, or could create liability for the Company.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including, but not limited to, referral to law enforcement, for any illegal or unauthorized use of the Mobile App.
• Terminate or suspend your access to all or part of the Mobile App for any or no reason, including but not limited to, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Mobile App. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.

However, we do not undertake to review material before it is posted on the Mobile App, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

• Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
• Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy, found at https://borntoughtrainer.com/privacy-policy/& https://borntoughtrainer.com/terms-of-service/.
• Be likely to deceive any person.
• Promote any illegal activity, or advocate, promote, or assist any unlawful act.
• Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
• Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Copyright Infringement

If you believe that any User Contributions violate your copyright, please see our Copyright Policy, found at _____________for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers of copyrights of others.

Reliance on Information Posted

THE INFORMATION PRESENTED ON OR THROUGH THE MOBILE APP IS MADE AVAILABLE SOLELY FOR GENERAL INFORMATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THIS INFORMATION. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO OR USER OF THE MOBILE APP, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.

This Mobile App includes content provided by third parties, including materials provided by users of both the Athlete and the Trainer versions of the Mobile App. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties, including materials provided by other users.

Changes to the Mobile App

We may update the content on this Mobile App from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Mobile App may be out of date at any given time, and we are under no obligation to update such material.

Information About You and Your Visits to the Mobile App

All information we collect on this Mobile App is subject to our Privacy Policy, found at https://borntoughtrainer.com/privacy-policy/. By using the Mobile App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Linking to the Mobile App and Social Media Features

This Mobile App may provide certain social media features that enable you to:

• Link from your own or certain third-party websites or mobile apps to certain content on this Mobile App.
• Send emails or other communications with certain content, or links to certain content, on this Mobile App.
• Cause limited portions of content on this Mobile App to be displayed or appear to be displayed on your own or certain third-party websites or mobile apps.

You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

• Cause the Mobile App or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
• Otherwise take any action with respect to the materials on this Mobile App that is inconsistent with any other provision of these Terms of Use.

The website or mobile app from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

Links from the Mobile App

If the Mobile App contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites or mobile apps linked to this Mobile App, you do so entirely at your own risk and subject to the terms and conditions of use for such websites or mobile apps.

Geographic Restrictions

The owner of the Mobile App is based in the state of Florida in the United States. We provide this Mobile App for use only by persons located in the United States. We make no claims that the Mobile App or any of its content is accessible or appropriate outside of the United States. Access to the Mobile App may not be legal by certain persons or in certain countries. If you access the Mobile App from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Mobile App, including materials posted by other users, will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE MOBILE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE MOBILE APP OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY MOBILE APP LINKED TO IT.

YOUR USE OF THE MOBILE APP, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE MOBILE APP IS AT YOUR OWN RISK. THE MOBILE APP, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE MOBILE APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE MOBILE APP. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE MOBILE APP, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE MOBILE APP WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE MOBILE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE MOBILE APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE MOBILE APP, ANY OTHER MOBILE APPS, WEBSITES OR MATERIALS LINKED TO IT, ANY CONTENT ON THE MOBILE APP, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

Indemnification

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees for both transactional and litigation-related work) arising out of or relating to your violation of these Terms of Use or your use of the Mobile App, including, but not limited to, your User Contributions, any use of the Mobile App’s content, services, and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Mobile App.

 

Governing Law and Jurisdiction

All matters relating to the Mobile App and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction).

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Mobile App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida, in each case located in the City of Miami and County of Miami-Dade, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your jurisdiction of residence or any other permitted jurisdiction. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts, (including but not limited to any objections based on the doctrine of forum non-conveniens).

 

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE MOBILE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Use will continue in full force and effect and will be interpreted so as to effect as nearly as possible the original intention of these Terms of Use.

Entire Agreement

The Terms of Use and our Privacy Policy, Copyright Policy and End User License Agreement constitute the sole and entire agreement between you and Company regarding the Mobile App and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Mobile App.

Your Comments and Concerns

This Mobile App is operated by Born Tough Trainer LLC, a Florida limited liability company with its office at 3 Turtle Walk, Key Biscayne, Florida 33149.

All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy, found at https://borntoughtrainer.com/born-tough-trainer-legal/ in the manner and by the means set out therein.

All other feedback, comments, requests for technical support, and other communications relating to the Mobile App should be directed to: [email protected]