HYGEAR Inc. ("HYGEAR", "us", "our", or "we"), a company incorporated under the laws of the State of California, United States, with company No. 611871033, markets a smart fitness system that includes exercise bands, devices and/or other equipment ("Bands") and which integrate with a mobile application that tracks movement and biometric indicators collected through the Bands ("App"). These Terms and Conditions ("Terms") govern your access and use of the App and the services available through the App ("Services"). Our Privacy Notice ("Privacy Notice") governs our collection, processing and transfer of any Personal Data (as such term is defined in the Privacy Notice). "You" means an individual using the App and Services.
Please read these Terms carefully. By clicking on the button marked "I agree" you signify your assent to these Terms. Changes may be made to these Terms by us from time to time. If you do not agree to any of these Terms, please do not click the button marked "I agree" and do not use the App and/or the Services.
1.Use of Services
1.1 Subject to these Terms and provided that you have an active Premium Subscription (as defined below), HYGEAR allows you to access and use the App and Services on a non-exclusive basis. HYGEAR may, at its sole discretion and at any time, modify or discontinue providing the App, the Services and/or any part of any of the foregoing and shall not be liable to you or any third party for any modification or discontinuance of the App, the Services and/or any part of any of the foregoing.
1.2 Use of and access to the Services is void where prohibited by law. You represent and warrant that (a) any and all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older and have the ability power and authority and right to enter into and form a binding contract; (d) your use of the App and/or the Services does not violate any applicable law (including, without limitation any guidelines and/or regulations) and/or any obligation you may have to a third party; (e) you 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; (f) you are not listed on any U.S. Government list of prohibited or restricted parties; and (g) you shall comply with applicable law (icnlduing, without limitation, any regulations and guidelines) and these Terms, throughout your use of the App and/or Services.
1.3 As part of the Services, HYGEAR may provide certain Content (as defined below) related to health or fitness, such as workout videos, tracking of biometric indicators or personalized recommendations for workouts. These recommendations are intended to assist you in maximizing your workouts, however they in no way constitute health, medical or other professional advice. The use of the Bands and App does not replace or serve as any treatment or advice to be provided by fitness or healthcare professionals. You are solely responsible for any decisions you make based on information provided through the App. Do not disregard, avoid or delay obtaining medical advice from a qualified professional because of information provided through the App and the Services.
2. Account Registration
2.1 In order to use the Services, you will need to have a registered account on the App. You can register by logging in through your Facebook, Gmail or other third-party login account ("Login Account") as may be permitted by HYGEAR from time to time. By registering through a Login Account, you represent and warrant that such Login Account is yours and that you have full rights to provide us with the information in such Login Account. To complete the registration process, you must provide all (additional) registration information as requested by us, such as height, weight, date of birth, and gender. We may indicate that the provision of some information is optional, but your agreement to provide such information may assist us in providing you with improved Services.
2.2 In order to activate your account and gain access to the App, you will need to input a valid Order ID or product Serial Number that is associated with the HYGEAR Premium Membership subscription that you have purchased ("Premium Subscription").
2.3 HYGEAR may refuse to open an account for any individual, at its sole discretion.
2.4 You agree to notify us immediately of any unauthorized use of your account or password. You are fully and solely responsible for the security of your computer system and/or mobile device and all activity on your account, even if such activities were not committed by you. To the fullest extent permitted by applicable law, HYGEAR will not be liable for any losses or damage arising from unauthorized use of your account or password, and you agree to indemnify and hold HYGEAR harmless for any unauthorized, improper or illegal use of your account and any charges and taxes incurred, unless you have notified us via e-mail at firstname.lastname@example.org that your account has been compromised and have requested that we block access to it, which we will do as soon as reasonably practicable. We do not police or search for, and cannot guarantee that we will learn of, or prevent, any inappropriate use of the Services.
2.5 Memberships. Certain features, content, functionalities and other aspects of the Services may be available only through a Premium Subscription program for users with a valid membership. The fee for the Premium Subscription (the “Membership Fee”) is the amount currently identified on the website, plus any applicable taxes and any fees in connection with the payment and is non-refundable. HYGEAR may, in its sole and absolute discretion, change the Membership Fee from time to time.
An initial Premium Subscription term of 12 months is required with each purchase of a Band. The Membership Fee is payable on a monthly basis. After the initial 12-month term, your Premium Subscription and the related Membership Fee, will renew automatically on a monthly basis, unless you cancel your Premium Subscription. Unless you notify us as set forth in the following paragraph at least three, and no more than 30, days before any such renewal date that you do not wish to automatically renew your Premium Subscription, you understand and expressly agree that your Premium Subscription will automatically continue for additional periods of one month each, and you authorize HYGEAR (without notice to you, unless required by applicable law) to collect and charge the then-applicable Membership Fee and any applicable taxes, for each such renewal, using any payment card that HYGEAR has on file for you. You agree to provide HYGEAR with alternate payment card information if the payment card HYGEAR has on file for you is no longer valid or if you choose to use a different payment card. For clarity, if your payment card expires or is no longer valid, your Premium Subscription is paused, or we are otherwise unable to charge a Membership Fee payment to your payment card for any particular month during your initial Premium Subscription term, you are still responsible and liable for making twelve monthly Membership Fee payments, which may mean that the monthly payments for your initial Premium Subscription term continue until you have made twelve monthly payments. If you do not complete the payments of the initial Premium Subscription term, your access to the App or the trainer therein (at our discretion) will be blocked.
If after 2 months the outstanding Membership Fee payments have not yet been paid, then the case will enter the debt escalation process, which may culminate in the recovery of the debt by a debt collector. In this case, the consumer will incur all charges paid by the company in the recovery of the debt.
If you wish to cancel your Premium Subscription, you may contact our Customer Support team here. Please contact our Customer Support team at least three and no more than 30 days prior to your desired last day of service. All subject to the preceding paragraph.
All memberships in the Premium Subscription are final. Except as otherwise required by applicable law, any paid Membership Fees (or payable Membership Fees for the remainder of an existing Premium Subscription term) are non-cancellable and non-refundable. If you decide to cancel your Premium Subscription, your Premium Subscription will automatically expire at the end of your then-current Premium Subscription term (subject to the preceding two paragraphs). For example, if you cancel your Premium Subscription in the middle of a monthly billing cycle, your Premium Subscription will continue until the end of that billing cycle.
Each Premium Subscription is associated only with a single household, and cannot be used to enable any benefits of the Premium Subscription on any HYGEAR Band outside of your household. Please note that multiple residences that you maintain for your own personal use are considered a single household. A Premium Subscription may permit the member to create and manage additional user accounts, solely for family members and personal guests of the member, that are permitted to use the benefits of the Premium Subscription on any HYGEAR Band associated with a valid Premium Subscription (“Additional Users”). Each Additional User must accept the terms and conditions of these Terms prior to using the Service and the member will be responsible for all acts and omissions of each Additional User under the Premium Subscription.
HYGEAR reserves the right, in its sole and absolute discretion, to exclude any individual(s) from the Premium Subscription or to terminate any membership, for any reason, including abuse of the Premium Subscription, failure to comply with these Terms, or fraud, misrepresentation or other conduct detrimental to the interests of HYGEAR. Any such exclusion or termination may affect eligibility for further participation in the Premium Subscription.
Please note that if your membership expires or is cancelled or terminated, you and any Additional Users may no longer have access to any data, information or other content (including historical data, usage records, custom workouts, etc.) associated with your membership, or to any advanced weight modes. For clarity, the ability to perform any workouts using your HYGEAR Band, without a valid Premium Subscription may be limited to adjusting the weight dial for the weight being lifted.
3. Termination of Account
3.1 You agree that HYGEAR may for any reason, at its sole discretion and without notice, suspend or terminate your account, and may remove any Content (as defined below) associated with your account and take any other corrective action it deems appropriate. Grounds for such termination or suspension may include (i) violation of the letter or spirit of these Terms, (ii) fraudulent, harassing or abusive behavior, or (iii) behavior that is illegal or harmful to other users, third parties, or the business interests of HYGEAR. Your access to the App and any Content thereon will also be terminated automatically, if your Premium Subscription is terminated or expires. If your account is terminated, you may not rejoin HYGEAR again without express permission. Upon termination of your account, you shall not have any further access to any Content that may be available through your account.
3.2 We reserve the right to investigate suspected violations of these Terms or illegal and inappropriate behavior through the Services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity, behavior or Content of anyone believed (by anyone) to have violated these Terms or to have engaged in illegal behavior in connection with the Services.
3.3 You may request termination of your HYGEAR account at any time and for any reason by sending an email to email@example.com. Following such request, HYGEAR shall close your account as soon as reasonably practicable. Any suspension or termination of your account and/or these Terms shall not affect your obligations under these Terms (including but not limited to ownership, indemnification, any representations and warranties made by you or limitation of liability), which by their sense and context are intended to survive such suspension or termination.
3.4 A termination cannot take effect without the settlement of any outstanding debts to the company in relation to the service. Where applicable and based on local law, interest will be accrued on any outstanding debt as well as a late payment fee.
4.1 Certain types of content may be made available through the Services and/or the App. "Content" as used in these Terms means, collectively, all content on or made available through the Services, including any images, photos, pictures, videos, reports, workouts, or recommendations, and any modifications or derivatives of the foregoing. In addition, certain information about your use of the Bands and Services will be tracked through the App, for example, data from smart sensors in the Bands, such as resistance, calories burned, force, reps and duration of exercise, will be tracked and displayed through the App and shall be considered Content. You acknowledge that this data may be used by HYGEAR in order to provide you with the Services and/or as permitted under the Privacy Notice.
4.2 Content comes from a variety of sources. You understand that HYGEAR is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of, by or relating to this Content. You hereby waive any legal or equitable rights or remedies you have or may have against us with respect thereto. HYGEAR DOES NOT ENDORSE ANY CONTENT OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED IN ANY CONTENT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE CONTENT.
5. Use Restrictions. You may not do or attempt to do or facilitate a third party in doing any of the following: (1) decipher, decompile, disassemble, or reverse-engineer any of the hardware, software, code and/or other item, if and as applicable, used to provide or constituting the Bands, App, Services or any other item provided by us, without our prior written authorization, including framing or mirroring any part of the App or Services; (2) circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content; (3) use the App or Services or content thereon in connection with any commercial endeavors in any manner; (4) use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the App or Services; (5) use or access another user’s account or password without permission; (6) use the App or Services or content thereon in any manner not expressly permitted by these Terms.
6. Intellectual Property
6.1 You acknowledge that HYGEAR or its licensors, as the case may be, have all right, title and interest in the Bands, App, Services, and any content thereon, including its overall appearance, text, graphics, graphics design, videos, demos, interfaces, and underlying source files, and all worldwide intellectual property rights, the trademarks, service marks, and logos contained therein and/or in connection with any of the foregoing, whether registered or unregistered. You may not copy, further develop, reproduce, republish, modify, alter download, post, broadcast, transmit or otherwise use the Content of the App or Services for any purpose. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the App and/or Services, if any. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in these Terms or the App should be construed as granting you any right to use any trademark, service mark, logo, or trade name of HYGEAR or any third party. If you provide the HYGEAR with any feedback regarding any content on the App and/or Services, HYGEAR may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback and all intellectual property in connection with such feedback shall be HYGEAR's.
7. Disclaimers and Disclaimer of Warranty
7.1 All information and content posted on the App is for informational purposes only and HYGEAR provides no guarantees with respect thereto. Your use of the App and/or Services is at your sole discretion and risk. The Services, the App and the Content on any of the foregoing are provided on an AS IS and AS AVAILABLE basis without warranties of any kind. We do not represent or warrant that Services will be of good quality or useful for your needs or that any health or fitness outcomes will be achieved.
7. 2 WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE APP AND/OR SERVICES OR ANY CONTENT THEREON, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE APP AND/OR SERVICES; OR (II) THAT THE APP OR SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE APP AND/OR SERVICES.
7.3 No advice or information, whether oral or written, obtained by you from us, shall create any warranty. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
7.4 You acknowledge and agree that HYGEAR is not a data retention service. You therefore must create backups of your data, and HYGEAR shall have no responsibility or liability in respect of any loss of, damage to, or corruption of, any such data.
7.5 In the event that your Premium Subscription includes any warranty, such warranty is limited to a warranty that the Band you purchase from us (if any) as part of your Premium Subscription is free of material defects in materials and workmanship, for the period indicated in the applicable Premium Subscription terms. Such warranty shall be the only warranty in connection with the Bank and all other warranties are excluded. The sole remedy in connection with any breach of such warranty, shall be the repair or replacement of the Bank, at HYGEAR's election (in case we require delivery back to us for such purpose, at a place to be designated by us, all costs of such delivery shall be on you), solely if we actually receive a detailed written notice of such breach from you during the applicable warranty period as aforesaid.
8. Limitation of Liability
8.1 In addition to the foregoing, we assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Content or Services. We are not responsible for any problems or technical malfunction or failure of any telephone network or lines, computer online systems or equipment, servers or providers, software, failure due to technical problems or traffic congestion on the Internet or on the Services. Under no circumstances shall we be responsible and/or liable for any loss or damage, including personal injury or death and any injury or damage to any person's mobile device or computer, resulting from use of the Bands, App, Services, any Content and/or any related item. In addition, we assume no responsibility for any incorrect data, including Personal Data provided by you or on your behalf and you hereby represent and warrant that you are solely responsible for any and all data provided to HYGEAR, including any incorrect data and you shall assume any and all liability for any consequences of provision of such incorrect data to us.
8.2 IN NO EVENT SHALL HYGEAR, ITS AFFILIATES, THE OFFICERS, DIRECTORS, EMPLOYEES, ASSIGNEES, OR AGENTS OF ANY OF THE FOREGOING BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE BANDS, APP, OR SERVICES, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE INFORMATION PROVIDED AS PART OF OR THROUGH THE SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT HYGEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU EXCEED THE LOWER OF $100 AND THE AMOUNT YOU ACTUALLY PAID TO US UNDER THESE TERMS.
9. Indemnification. You agree to indemnify, defend, and hold harmless HYGEAR and its employees, directors, officers, subcontractors and agents, against any and all claims, damages, or costs, losses, liabilities or expenses (including court costs and attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your computer and/or mobile device and/or password (whether authorized or unauthorized); (b) any claim, loss or damage experienced from your use or attempted use of (or inability to use) the Bands, App or Services; (c) your violation of any law or regulation or any of your obligations, representations, or warranties hereunder including but not limited to breach of any privacy and/or data protection laws and regulations to which you are subject; (d) your infringement of any right of any third party; and (e) any other matter for which you are responsible under these Terms or under applicable law.
11. Third-Party Services. To the extent you use the App in connection with any third-party services, software, applications, equipment, hardware, devices, websites and/or items, you agree to do so in compliance with the agreement you have entered with such third party. We make no promises regarding any content, goods or services provided by such third parties and all use of third-party websites and applications is at your own risk.
12. Miscellaneous. These Terms shall be governed solely by the laws of the State of Israel (without its conflicts of laws rules), and without regard to the United Nations Convention on the International Sales of Goods and the competent courts in Tel-Aviv-Jaffa, the State of Israel shall have exclusive jurisdiction to hear any disputes arising hereunder. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between you and HYGEAR or enables you to act on behalf of HYGEAR. Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between us and you pertaining to the subject matter hereof, and any and all other agreements existing between us and you relating thereto are hereby canceled. We may assign and/or transfer our rights and obligations hereunder to any third party without prior notice. You shall not assign and/or transfer any of your rights or obligations hereunder, and any assignment in violation of the foregoing shall be void. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If we are required to provide notice to you hereunder, we may provide such notice to the contact details you provided upon registration.
13. Contact Information. If You have any questions or comments please write to the following address: firstname.lastname@example.org Our address is 3415 South Sepulveda Blvd., Suite 1100, Los Angeles CA, 90034 USA
Last updated: May 2021