Terms of Use - GiaFit

GIAFIT TERMS OF USE

Last updated: June 11, 2023

Welcome to GIAFIT. The “GIAFIT Service” means the GIAFIT subscription service (including our website, the GIAFIT App (as defined below), associated user interfaces and all content and software and all other features and functionalities associated with those services) that provides subscribers with access to view and discover our Content (as defined below) streamed over the internet to Compatible Devices (as defined below).

The GIAFIT Service is operated and provided to you by GiaFit Media Limited, a Canadian company, whose registered office is located at Vernon, BC, Canada (“GiaFit”, “we”, “us”, “our”).

The content contained within the GIAFIT Service is in English. You will need to understand English in order to be able to make full use of the GIAFIT Service and to be able to use the GIAFIT Service safely.

IF YOU RESIDE IN THE U.S. PLEASE READ THIS NOTICE REGARDING DISPUTE RESOLUTION: These Terms of Use contain provisions that govern how claims you and we may have against each other are resolved (see clause 27 below), including an agreement and obligation to arbitrate disputes.

Subject to limited exceptions, the agreement and obligation to arbitrate disputes pursuant to clause 27 below requires you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with clause 27. Unless you opt-out of arbitration: (A) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Our Agreement

1.1 These terms of use (“Terms of Use“), along with terms specific to your Subscription provided to you at the time of signing up, set out the agreement for your access to and use of the GIAFIT Service (together, the “Agreement“).

1.2 You should read this Agreement carefully, along with our GIAFIT privacy policy (“Privacy Policy“) found at https://gia.fit/privacy-policy/, before using the GIAFIT Service.

1.3 Your use of the GIAFIT Service means that you accept and agree to the terms of this Agreement. If you do not agree to the terms of this Agreement, please do not use the GIAFIT Service.

Interpretation

2.1 In these Terms of Use:

“Compatible Devices” means certain computers, televisions and other devices with internet browsers which are compatible with use of the GIAFIT Service. Further information on Compatible Devices can be found in the FAQs on our website;

“Content” means pre-recorded audio-visual exercise presentations and any other written materials or content available to view on the GIAFIT Service;

“Group Companies” means any company, other than us, owned by or ultimately controlled by GiaFit;

“GIAFIT App” means the GIAFIT software application owned by us that may be licensed for download on Compatible Devices; and

“Payment Method” means the way you pay for your subscription, for example, by credit card or direct debit.

In the event of any conflict between these Terms of Use and the Website Terms of Use, the provisions of these Terms of Use shall prevail to the extent of such conflict.

You are responsible for exercising within your limits

3.1. Consult your doctor before using the GIAFIT Service and follow your doctor’s advice. Do not use the GIAFIT Service if you have a history of chest pain, knee, ankle, wrist, shoulder, joint, or spinal (back or neck) problems or injuries. Read and follow all safety guidance provided as part of the GIAFIT Service. If you are unfamiliar with the exercises on the GIAFIT Service, please visit our FAQs page for more information on form before participating for the first time. If at any time you feel you are exercising beyond your current fitness abilities, or you feel discomfort, pain, dizziness, or nausea, you should discontinue exercising immediately. Nothing on the GIAFIT Service constitutes medical or professional advice or care. We and our Group Companies do not guarantee any exercise, health, weight loss or fitness results or improvements to users of the GIAFIT Service. WARNING: Do not participate in indicated videos if prone to seizures. Flashing lights and rapid imagery changes may be used. Motion sickness may be experienced.

3.2 You are responsible for exercising within your limits and assume all risk of injury to your person or property resulting from your use of the GIAFIT Service, except where injury to your person has been caused by our negligence. CLAUSE 22 OF THESE TERMS OF CONDITIONS APPLIES TO YOUR USE OF THE GIAFIT SERVICE.

Your Subscription

4.1 To access and view Content you will need to:

(a) register an GIAFIT Service account (“GIAFIT Account“); and

(b) purchase an GIAFIT Service subscription (“Subscription“).

4.2 To create an GIAFIT Account, buy a Subscription and use the GIAFIT Service, you must:

(a) be aged 18 years (or the age of majority in your territory of residence if more than 18 years old) or above;

(b) have internet access; and

4.3 Your Subscription, which may start with a free period of access, will automatically renew for a subsequent subscription period unless and until you or we cancel it in accordance with this Agreement.

4.4 You can find details of your Subscription with us at any time, including the renewal date and price for your Subscription, by signing in to your GIAFIT Account and clicking on “Account”.

4.5 During your Subscription, we grant you a limited, non-exclusive, non-transferable, non-assignable licence to access the GIAFIT Service to view Content on a streaming-only basis. Except for this licence, no right, title or interest in the Content or GIAFIT Service shall be transferred to you. You must not reproduce, perform, display or exhibit the GIAFIT Service or the Content for any commercial purpose or in any public place.

Children’s Content

5.1 The GIAFIT Service is not generally suitable for use by children under the age of 18.

5.2 We may offer limited Content that is suitable for children under the age of 18 (or the local or the age of majority in your territory of residence if more than 18 years old) (“Children’s Content“) on the GIAFIT Service. Such Children’s Content will be expressly labelled as suitable for children.

5.3 Individuals under the age of 18 (or the local or the age of majority in your territory of residence if more than 18 years old) may use the GIAFIT Service to watch Children’s Content using their parent or legal guardian’s GIAFIT Account only:

(a) with the consent and supervision of the applicable parent or legal guardian; and

(b) subject to the terms of this Agreement.

5.4 You, if you are the parent or legal guardian of a child, are responsible for monitoring and supervising your child’s use of the GIAFIT Service when viewing any Children’s Content.

5.5 If you are the parent or legal guardian of a child that is permitted to use the GIAFIT Service, you should consult with your child’s doctor before using the GIAFIT Service with your child and follow his or her advice. Do not allow your child to use the GIAFIT Service if your child has a history of chest pain, knee, ankle, wrist, shoulder, joint, or spinal (back or neck) problems or injuries. Read and follow all safety guidance provided as part of the GIAFIT Service. If at any time you feel your child is exercising beyond their current fitness abilities, or your child feels discomfort, pain, dizziness, or nausea, your child should discontinue exercising immediately. Nothing on the GIAFIT Service is intended to be medical or professional advice or care. We and our Group Companies do not guarantee any exercise, health, weight loss or fitness results or improvements to users of the GIAFIT Service.

Location and Device Restrictions

6.1 The Content available on the GIAFIT Service may vary by country. We will use technologies to verify your geographic location when you sign up and use the GIAFIT Service.

6.2 If you are resident in the EU, you can access the Content usually available through your specific Subscription when visiting another EU country, at no extra cost. This means that you can enjoy the same service abroad that you would at home; you will be accessing the same Content, in the same language, that you access through your Subscription when you are at home. This access is available only if you are temporarily abroad in another EU country and we are able to verify that your country of residence is in the EU.

6.3 The number of devices on which you may simultaneously watch Content via your Subscription is limited to three (3).

6.4 The availability and quality of the GIAFIT Service and Content may vary from computer to computer, and device to device due to a variety of factors, such as your location, your carrier, the bandwidth available through and/or speed of your internet connection. An internet connection of at least 3MB/sec is required in order to stream standard definition Content on the GIAFIT Service, and 5MB/sec is required in order to stream high definition Content on the GIAFIT Service.

6.5 If your Compatible Device, or any other devices, hardware or equipment, supplied to you by someone else does not work properly, you need to contact the equipment supplier or manufacturer, rather than us, about the problem.

6.6 You are responsible for all third party services required to allow you to access the GIAFIT Services (including your internet service provider and your electricity service provider) and all obligations and charges you may owe (including but not limited to broadband or mobile data charges, and electricity charges). If there is a problem with a service provided for you by another supplier, you need to contact that supplier about the problem.

Updates and Changes to the Service

7.1 We may regularly make updates and changes to any element of the GIAFIT Service or the Content for example to (i) ensure compliance with applicable laws and/or reflect change in relevant laws and regulatory requirements, such as mandatory consumer laws; (ii) perform temporary maintenance, fix bugs, implement technical adjustments and make improvements, (iii) update, upgrade or amend the GIAFIT Service; (iv) alter the structure, design, or layout of the GIAFIT Service, such as changing the branding; (v) for security reasons; and (vi) for anti-piracy reasons. In particular, the availability of Content may change from time to time (for various reasons, such as when relevant rights-holders withdraw or restrict our right to use that Content on the GIAFIT Service). We therefore have the right to add or withdraw Content at any time, with or without notice. You acknowledge and agree that Content are variable and will change from time to time without notice.

7.2 There may also be times when we have to remove certain features or functionality and/or stop allowing certain devices or platforms from being able to access the GIAFIT Service.

7.3 If changes to any element of the GIAFIT Service are likely to negatively impact your access or use of the GIAFIT Service in more than a minor way, we will give you at least 30 days’ notice and the right to cancel. If you do not cancel your Subscription after we have notified you about any changes and before these changes take place, and you continue to use the GIAFIT Service, unless prohibited by law, you agree that this constitutes your acceptance of the changes. If this type of change is going to come into effect during your subscription period, you will still be able to cancel your Subscription before the change comes into effect. If you choose to cancel your Subscription in these circumstances, we will, if required by applicable law, provide you with a refund for amounts you have paid for the GIAFIT Service but not received.

Changes to this Agreement

8.1 We may change the terms of this Agreement from time to time. The circumstances in which we may change the terms of this Agreement may include (without limitation), to comply with applicable laws, to provide you with additional information about the GIAFIT Service, where we need to make changes to the GIAFIT Service in order to improve it, or for safety or security reasons.

8.2 We will notify you at least 30 days before making any material changes to the terms of this Agreement, unless the changes need to be implemented quickly for security, legal or regulatory reasons, in which case we will notify you of the changes as soon as we can. If any change to the terms of this Agreement will materially disadvantage you, or materially affect the availability of the GIAFIT Service, we will provide you with 30 days’ notice before the changes become effective and you can choose to cancel your Subscription before the changes become effective.

8.3 Where possible, we will ensure that any changes to the terms of this Agreement, which materially disadvantage you, will not come into effect until the start of your next subscription period. If a materially adverse change is going to come into effect during your current subscription period, you can cancel your Subscription before the change comes into effect and we will, to the extent required by applicable law, provide you with a refund for amounts you have paid for the GIAFIT Service but not received.

8.4 If you continue to use the GIAFIT Service following any change to the terms of this Agreement, you agree that this constitutes your acceptance of the amended terms of this Agreement. The most up to date terms of this Agreement will always be available on the GIAFIT Service from the effective date of those updated terms of this Agreement.

Differing Subscriptions and Activation Codes

9.1 We may offer a number of subscription plans, including subscriptions with differing subscription periods, conditions and limitations. Any specific terms relating to a particular subscription plan will be notified to you via the GIAFIT Service before you sign up for a Subscription. These specific terms will take precedence over the terms set out in this Agreement, to the extent that a conflict arises.

9.2 We and our Group Companies may make available promotional subscriptions and offers (“Promotional Offers“). Please check the relevant terms and conditions, which apply to any Promotional Offer for full details. Promotional Offers may also be offered by third parties (for example, certain fitness facilities), including in conjunction with their own products and services. We are not responsible for the products and services provided by these third parties.

9.3 From time to time, activation codes that grant you access to use the GIAFIT Service may be available from us, our Group Companies and/or third party partners, including those provided as part of a third party Promotional Offer. Activation codes may be redeemed and will grant you access to the GIAFIT Service, as further described in the specifics of the relevant Promotional Offer, or may allow you to enter an activation code during sign-up on the GIAFIT Service. Activation codes can only be used once cannot be redeemed for cash and may not be combined with other offers, including a free period of access, unless otherwise determined by us in our sole discretion. If you received an activation code through a Promotional Offer from a third party, additional conditions may apply.

Free Period of Access

10.1 Your Subscription may start with a free period of access. The duration of any free period of access will be specified during your online sign-up. For combinations with Promotional Offers, restrictions may apply, which will be confirmed in the terms accompanying any applicable offers. Free periods of access are for new subscribers to the GIAFIT Service only (one per subscriber) and are subject to availability.

10.2 We will begin charging your Payment Method for subscription fees at the end of the free period of access of your Subscription, unless you cancel prior to the end of the free period of access. You can cancel your subscription during the free period of access by signing into your GIAFIT Account on our website, select ” Account”, “My Subscriptions”, scroll down to “Subscription Details”, and click “Cancel Subscription”.

10.3 If you are a resident of Quebec, your Subscription will not start with a free period of access, which converts into a paid subscription. However, new subscribers resident in Quebec who sign up for a Subscription may get the initial portion of their first subscription period at no charge or at a reduced charge. The specific duration of any applicable portion will be specified at the point of sign-up. Further details on subscriptions for residents of Quebec can be found on our website.

Subscription Fees

11.1 By purchasing a Subscription and providing or designating a Payment Method, you authorise us to charge you the relevant fee at the then current rate (“Subscription Fee“) to your Payment Method. As used in these Terms of Use, “charge”, “charging” etc., shall indicate either a charge, debit or other payment clearance, as applicable, against your Payment Method.

11.2 The Subscription Fee will be charged at the start of the paying portion of your Subscription, following any free period of access, and at the start of each subscription period thereafter, unless and until your subscription is cancelled. For example, if you subscribe with an initial 10 day free period of access on 16 April, the paying portion of your subscription will begin on 26 April following your free period of access and you will be charged on 26 April for the applicable Subscription Fee.

11.3 You must cancel your subscription before the end of your current subscription period in order to avoid being charged for the next period’s Subscription Fee to your Payment Method. For example, if you wish to cancel your subscription with effect from 1 May, you will need to provide notice no later than midnight on 30 April.

11.4 Unless required by law, and except where you cancel your service within the statutory cancellation period (as provided for in Clause 14.1), there are no refunds or credits for partially used periods. However, following any cancellation, you will continue to have access to the GIAFIT Service through to the end of your current billing or subscription period.

11.5 All charges shall be in the currency specified at the time you signed up for your Subscription.

11.6 If a payment is not successfully settled and you do not edit your Payment Method information or cancel your GIAFIT Account, we may retry the payment method and/or suspend your access to the GIAFIT Service until we have obtained a valid payment method. When you update your Payment Method in your GIAFIT Account, you authorise us to charge the updated Payment Method for any uncollected amounts and your on-going Subscription Fee. This may result in a change to your payment dates or subscription period.

11.7 For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges. Check with your Payment Method service provider for details.

11.8 If you access the GIAFIT Service or purchase a Subscription through a third party (for example, an app-store or via one of our partners):

(a) in the event that you encounter any problems with billing or payments, please contact that third party relating to your Subscription in accordance with that third party’s terms; and

(b) your payment will be to that third party and you will be subject to that third party’s terms (including any applicable usage rules). Important information on the applicable terms of sale, charges, taxes, payment methods, your right to cancel a transaction and when you can exercise this right (where applicable), and the technical steps to conclude a transaction, will be detailed in the third party’s terms and conditions. You must comply with those terms and conditions and also with this Agreement. In the event of any inconsistency between this Agreement and those terms and conditions, the third party terms and conditions shall take precedence over this Agreement.

11.9 If you are paying for your Subscription via a third party and you wish to change your Payment Method, you will need to do so through that third party.

Price changes

12.1 We may change the price of your Subscription from time to time. Any price changes will apply to you no earlier than 30 days following notice to you. We will let you know the date on which any price change is due to come into effect. If you have purchased a Subscription via a third party, price changes will be subject to that third party’s terms and conditions.

12.2 If we notify you of a price change and you do not want to continue your Subscription at the new price, you can cancel your Subscription before the start of the next subscription period by following the steps in clause 13 (Cancellation and Termination) below. If you continue to use the GIAFIT Service after the start of your next subscription period, you consent to the price change, and you do not need to take any further steps.

12.3 We will ensure that the price of your Subscription will not change until the start of your next subscription period. If a price change is going to come into effect during your current subscription period, you can cancel your Subscription before the price change comes into effect and we will provide you with a refund for amounts you have paid for the GIAFIT Service but not received.

Cancellation

13.1 You may cancel your Subscription at any time, and you will continue to have access to the GIAFIT Service through to the end of your current subscription period.

13.2 To cancel your Subscription, sign into your GIAFIT Account on our website, select “My Account”, “My Subscriptions”, scroll down to “Subscription Details” and then select “Cancel Subscription”. You may not be able to cancel your Subscription through your online account if you access your GIAFIT Account from outside the country in which you created your GIAFIT Account. In this case, you must email us at [email protected] to cancel your Subscription.

13.3 If you cancel your Subscription, your GIAFIT Account will automatically close at the end of your current subscription period.

13.4 If you signed up for the GIAFIT Service with a third party (for example, through a membership to a fitness facility), and wish to cancel your Subscription, including during your free period of access, you need to do so through the applicable third party. You may also need to ask the applicable third party for your billing information in respect of your Subscription. That third party may also be able to cancel your GIAFIT Account without your consent, subject to the applicable third party terms. When we receive a cancellation request from a third party, you agree that we may contact you to see if you would like to sign up to the GIAFIT Service directly (where we have your prior consent to do so).

13.5 To the extent permitted by applicable law, when you purchase a Subscription from us you agree:

(a) we will provide you with access to the GIAFIT Service immediately; and

(b) where we get your consent when you sign up, you waive any statutory right you may have to:

(i) change your mind about your Subscription; and

(ii) receive a refund within any applicable cooling off period.

Right of Withdrawal

14.1 If you are a resident in the UK or a country in the EEA, you have a legal right to cancel your Subscription with us within 14 days of purchase. Instructions on how to exercise this right, the consequences of exercising this right and a model form that you can use are set out at the end of these Terms of Use in Appendix 1.

14.2 However, if you are a resident in the UK, when you purchase a Subscription from us and you request immediate access to your Subscription Content, you will also be asked to acknowledge that you understand this means you will lose your statutory right to withdraw from this the Subscription agreement and receive a refund within the 14 day withdrawal period.

Ending your right to use the Service

15.1 We may end your right to use all or any part of the GIAFIT Service or your Subscription immediately if we have a reasonable belief that you have breached this Agreement or if you are using the GIAFIT Service, the Content or your Subscription in any manner other than for its intended purpose, fraudulently or illegally. If what you have done can be put right we may give you a reasonable opportunity to do so.

15.2 If we decide to discontinue any part of the GIAFIT Service, we will give you at least 30 days’ prior notice (unless we need to discontinue the GIAFIT Service (or any part of it) more quickly for legal reasons, including in order to comply with a court order). If we discontinue a part of the GIAFIT Service you have subscribed to, we will, to the extent required by applicable law, provide you with a refund for any amounts you have paid us for the GIAFIT Service but not yet received.

15.3 If we end your rights to use the GIAFIT Service or your Subscription you must stop all activities authorised by this Agreement, including your use of the GIAFIT Service or your Subscription.

15.4 Your access to the GIAFIT Service may be conditional upon you having a valid membership to a participating fitness facility. In those situations, we reserve the right to immediately terminate your Subscription if you do not have, or no longer have, a valid membership to a participating fitness facility. You will be made aware of this at the point of sign-up.

Your obligations

16.1 You must not, and must not allow third parties, to:

(a) attempt to copy, reproduce, publish, transmit, broadcast, archive, download (other than through caching necessary for personal use), distribute, modify, display, perform, license, transfer, exchange, translate, create derivative works from, offer for sale, or use (except as explicitly authorised in this Agreement) content and information contained on or obtained from or through the GIAFIT Service without express written permission from us;

(b) use the GIAFIT Service for public performances including, without limitation, performance in or for any fitness facility;

(c) use the Content (including, without limitation, the choreography or music contained therein) to teach or instruct any fitness class;

(d) circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the GIAFIT Service;

(e) use any robot, spider, scraper or other automated means to access the GIAFIT Service;

(f) decompile, reverse engineer or disassemble any software or other products or processes accessible through the GIAFIT Service (except as permitted by applicable law);

(g) insert any code or product or manipulate the content of the GIAFIT Service in any way;

(h) use any data mining, data gathering or extraction method;

(i) infringe any third party’s rights;

(j) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the GIAFIT Service. We may modify or delete any material that is considered defamatory, offensive or otherwise unlawful, or that infringes the rights of anyone else;

(k) access, view and/or purchase the GIAFIT Service using a virtual proxy network;

(l) register multiple times for a free period of access (which would constitute a breach of this Agreement); or

(m) upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the GIAFIT Service, including any software viruses or any other computer code, files or programs.

16.2 You agree to:

(a) pay the Subscription Fees;

(b) comply at all times with the terms of this Agreement;

(c) use the GIAFIT Services for your own personal and non-commercial use, and not for any commercial or business purpose;

(d) ensure all information you give us is correct at all times, and notify us immediately of any changes to your contact details;

(e) follow the instructions and directions we provide about using the GIAFIT Service and only use the GIAFIT Service in accordance with all applicable laws, rules and regulations;

(f) be responsible and liable for any use by any other person (authorised or unauthorised) of the GIAFIT Services we provide to you, including, without limitation, any charges associated with that use and any consequences if an applicable person misuses the GIAFIT Services or breaches this Agreement or suffers any injury or damage to their property;

(g) make sure everyone you are responsible for and who may use or do anything in relation to the GIAFIT Services also meets the responsibilities set out in this Agreement; and

(h) be responsible for configuring your information technology, computer Content and Compatible Devices in order to access our website, app and the GIAFIT Service. You should use your own virus protection software.

The GIAFIT App

17.1 If you have downloaded the GIAFIT App from the Apple iTunes App Store, the following additional terms apply:

(a) You acknowledge that this Agreement is not between you and Apple.

(b) Your use of the GIAFIT App is limited to a non-transferable licence to use the GIAFIT App on any iOS products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the GIAFIT App.

(c) To the extent permitted by law, Apple has no warranty obligation with respect to the GIAFIT App and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty set forth in this Agreement is our responsibility.

(d) You acknowledge that Apple is not responsible for addressing any of your claims (or any third party claims) relating to the GIAFIT App or your possession and/or use of the GIAFIT App, including, but not limited to: (i) any third party claims of intellectual property right infringement, (ii) product liability claims, (iii) any claim that the GIAFIT App fails to conform to any applicable legal or regulatory requirement, and (iv) claims arising under consumer protection or similar legislation.

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

(f) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement with respect to the GIAFIT App, and that Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you in respect of the GIAFIT App as a third party beneficiary thereof as set forth herein.

Passwords & Account Access

18.1 Your control over your GIAFIT Account is exercised through your login and password. To maintain exclusive control over your GIAFIT Account, you should not reveal your password to anyone. You are responsible for all access to and use of the GIAFIT Service through your GIAFIT Account. You agree to notify us immediately if you become aware of or suspect any unauthorised use of your password or username. You are responsible for updating and maintaining the truth and accuracy of the information you provide to us relating to your GIAFIT Account.

18.2 In order to provide you with ease of access to your GIAFIT Account and to help administer the GIAFIT Service, we may implement technology that enables us to recognize you and provide you with direct access to your GIAFIT Account without requiring you to retype any password or other user identification when you revisit the GIAFIT Service, which includes access via Compatible Devices or our website.

18.3 We reserve the right to place any GIAFIT Account on hold anytime, with or without notification to the subscriber, in order to protect ourselves and our partners from what we reasonably believe to be fraudulent activity (once a hold has been put in place, we will notify you as soon as possible). Any hold placed on an GIAFIT Account will not last any longer than 10 working days, after which we will either terminate this Agreement, or re-open your GIAFIT Account. We are not obligated to credit or discount a Subscription for holds placed on a GIAFIT Account in circumstances where your act or omission constitutes fraudulent activity on your GIAFIT Account or you are in breach of your obligations under this Agreement.

Intellectual Property

19.1 The GIAFIT Service and Content are protected by copyright, trade mark, trade secret and/or other proprietary intellectual property rights owned by or licensed to us.

19.2 You have no intellectual property rights in or to the GIAFIT Service or any Content, other than the right to use them in accordance with this Agreement.

19.3 You may not remove, alter, or in any way tamper with any copyright notices or other proprietary markings included in the GIAFIT Service or any Content. Any copying, access, transfer, public performance or communication to the public or other use of the GIAFIT Service or any Content other than as expressly authorised by applicable law or this Agreement shall constitute an infringement of applicable intellectual property rights and a breach of this Agreement. In the event of applicable infringement, we, or one of our Group Companies, may, without notice or prior intervention of a court or arbitral body, block your access to the GIAFIT Service and terminate any Subscription you may have and pursue any rights or remedies available to us.

19.4 The Content contain cover music and a selection of licensed original recordings. For more information please visit the tracklist section of our website.

19.5 All of our and our Group Companies trade and service marks and logos, and our and our Group Companies products and services described in our or our Group Companies’ websites, are either trademarks, service marks or registered trademarks of us, our Group Companies or our authorised agents, and may not be copied, imitated or used, in whole or in part, without our prior written permission. For the avoidance of doubt, you may not use any of our or our Group Companies’ 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, custom graphics, button icons, and scripts are the copyright and / or service marks, trademarks, and/or trade dress of us or our Group Companies and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Our and our Group Companies’ 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 us or our Group Companies. All other trademarks, service marks, registered trademarks, product and service names and company names or logos that appear on the GIAFIT Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us or our Group Companies.

19.6 We respect the intellectual property of others. If you believe that your work has been copied and has been used on the GIAFIT Service in a way that constitutes copyright infringement, please notify us immediately, ([email protected]), and provide the following information:

(a) A description of the copyrighted work that you claim has been infringed;

(b) A description of the location in the GIAFIT Service of the material that you claim has been infringed;

(d) Your statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

(e) Your statement that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and

(f) Your physical or electronic signature.

19.7 Our Copyright Agent for notice of claims of copyright infringement on the GIAFIT Service can be reached as follows:

GiaFit International Limited, 22 Centre Street, Auckland 1010, New Zealand

Email: [email protected]

Attention: General Counsel, Legal Department

Privacy

Any personal information you supply to us or that we collect from you when using the GIAFIT Service will be used by us in the ways set out in our Privacy Policy. Please also ensure you read our Cookies Policy.

Comments

21.1 The GIAFIT Service may allow you to submit or post comments on the Content. You agree that any comment submitted or posted from your account will:

(a) not contain anything that is harmful, offensive, defamatory, unlawful or otherwise objectionable in nature;

(b) not attempt to impersonate another party or contain any confidential or personal information belonging to another party;

(d) not infringe the rights (including intellectual property rights) of any other party.

21.2 Where we reasonably consider that a comment submitted or posted from your account breaches clause 21.1 or any other term of this Agreement, we may, at our sole discretion:

(a) remove or edit your comment;

(b) give you a warning that your comment is in breach of clause 21.1 or any other term of this Agreement; or

21.3 If you do post content or submit material, and unless we indicate otherwise, you grant us and our associates a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish and translate, create derivative works from, distribute, and display such content throughout the world in any media.

Our liability to you

22.1 We accept liability for death or personal injury caused by our negligence or that of our employees and agents. We do not seek to limit or exclude liability for fraudulent misrepresentation, wilful misconduct or gross negligence by us or our employees or agents or any other liability which cannot be limited or excluded under applicable law.

22.2 If we breach these terms of use we will only be liable for losses which are a reasonably foreseeable consequence of that breach. Losses are foreseeable where they could be contemplated by you and us at the time of you agreeing to these terms of use.

22.3 If you are resident in the EEA, national laws may provide you with a legal guarantee that the GIAFIT Service will be in legal conformity at the time of supply and during the life of our contract with you. Under this legal guarantee, we will be liable for any lack of conformity of the GIAFIT Service and you may have a right under your local laws to:

(a) have the GIAFIT Service brought back into conformity;

(b) a proportionate refund; or

22.4 We are not responsible for:

(a) malfunctions or faults in your chosen equipment, devices, operating system or internet connection (including malware, viruses or bugs originating from third parties or on any of your devices);

(b) your failure to download or install any update or the most recent published version of the GIAFIT Service, where we have informed you about the update, explained the consequences of failing to install it and provided installation instructions; or

(d) unless it would put us in breach of our statutory conformity warranties:

(i) any malfunction of or interruption to the GIAFIT Service due to unforeseeable circumstances that prevent us from fulfilling our obligations to you;

(ii) errors, viruses or bugs present in or arising from your use of the GIAFIT Service;

(iii) incompatibility of the GIAFIT Service with any other software or hardware (including any of your devices); and

(iv) any act or default of any third party platform, service provider, supplier, device manufacturer or provider of a device operating system, which are beyond our reasonable control.

22.5 You have certain statutory rights under the applicable laws of your territory. Nothing in these Terms of Use is intended to affect these statutory rights. For more information about your statutory rights contact your local consumer organisation.

22.6 In Canada, the laws of certain jurisdictions, including the province of Quebec, may not allow the exclusion or limitation of liability described in the following clauses 22.7 and 22.8. If these laws apply to you, some or all of the below exclusions or limitations may not apply to you and you may have additional rights.

22.7 APART FROM LIABILITY ARISING IN RESPECT OF THE CIRCUMSTANCES SET OUT IN CLAUSE 22.1 (WHICH IS UNLIMITED), TO THE FULLEST EXTENT PERMITTED UNDER LOCAL LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL LOSSES OR DAMAGES ARISING FROM YOUR USE OF THE GIAFIT SERVICE OR YOUR SUBSCRIPTION EXCEED THE AMOUNT YOU HAVE PAID FOR YOUR SUBSCRIPTION.

22.8 UNLESS IT WOULD PUT US IN BREACH OF OUR STATUTORY CONFORMITY WARRANTIES, WE CANNOT GUARANTEE THAT THE GIAFIT SERVICE WILL BE FREE FROM BUGS OR ERRORS OR THAT YOUR ACCESS WILL BE FREE FROM INTERRUPTIONS (FOR EXAMPLE THERE MAY BE DOWNTIME FOR MAINTENANCE OR UPDATES OR ANY POWER OR SERVER OUTAGES OR OTHER REASONS OUTSIDE OUR CONTROL), HOWEVER WHERE WE ARE MADE AWARE OF TECHNICAL ISSUES THEN WE WILL ALWAYS TRY TO FIX THEM.

22.9 UNLESS IT WOULD PUT US IN BREACH OF OUR STATUTORY CONFORMITY WARRANTIES, PLEASE NOTE THAT WE ARE NOT RESPONSIBLE FOR ANY LACK OF FUNCTIONALITY OR FAILURE TO PROVIDE ANY PART OF THE GIAFIT SERVICE, OR ANY LOSS OF CONTENT OR DATA THAT IS DUE TO: YOUR EQUIPMENT, DEVICES, OPERATING SYSTEM OR INTERNET CONNECTION, YOUR FAILURE TO DOWNLOAD THE MOST RECENT PUBLISHED VERSION OF THE GIAFIT SERVICE OR MEET THE COMPATIBILITY REQUIREMENTS OR THE CONSEQUENCES OF YOU CHANGING YOUR EQUIPMENT, DEVICE, OPERATING SYSTEM OR INTERNET CONNECTION.

22.10 FOR USERS WITHIN THE UNITED STATES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GIAFIT SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM GIAFIT OR THROUGH THE GIAFIT SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE.

Severability

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If a modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

Transfer of rights

The agreement between us and you is personal to you and no third party is entitled to benefit under it. You agree we can transfer our rights and obligations under this Agreement to any company, firm or person provided that your subscription will not be adversely affected as a result of this type of transfer. You may not transfer your rights or obligations under this Agreement to anyone else.

Notices

We will send you information relating to your account and your subscription (e.g. payment authorisations, invoices, changes in password or payment method, confirmation messages, content and feature updates and other service or transactional messages) by email to the email address provided during sign up (if you signed up via a third party, for example via one of our partners or using your account details with a platform, then we may obtain your email from that third party or platform so that we can keep you up to date with service-related messages). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that applicable communications be in writing.

Terms Applicable to Users outside of the United States

26.1 These Terms of Use shall be governed by and construed in accordance with the laws of the territory identified in the table below. However, these Terms of Use will not limit any consumer protection rights that you may be entitled to under the mandatory laws of your territory of residence.

Territory of Residence Governing Law

Spain Spanish Law

Quebec, Canada The laws of the province of Quebec

Brazil Brazilian Law

United Arab Emirates, Kingdom of Saudi Arabia, Turkey

The laws of England and Wales

Rest of World New Zealand

26.2 You can bring a claim related to or arising from these Terms of Use in the courts of your territory of residence.

Terms Applicable to Users within the United States: Dispute Resolution and Binding Arbitration

27.1 YOU AND GIAFIT ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT (OTHER THAN SMALL CLAIMS COURT) OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION OR SMALL CLAIMS COURT. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF A SUBSCRIPTION TO THE GIAFIT SERVICE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION (OR IN SMALL CLAIMS COURT).

27.2 Informal Dispute Resolution Procedure. We are available at [email protected] to address any concerns you may have regarding these Terms of Use or your use of the GIAFIT Service. Most concerns may be quickly resolved in this manner. You and we agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating an arbitration or small claims court suit. If you or GiaFit intends to seek arbitration or file a small claims court suit, the party seeking arbitration or small claims court must first notify the other party of the dispute in writing at least 45 days in advance of initiating the arbitration or small claims court suit (the “Notice Period”). Notice to GiaFit should be sent to:

GiaFit

(with a copy sent to [email protected]).

The notice must include enough information to allow the receiving party to assess and attempt to resolve the dispute, including but not limited to, (i) the name, address, telephone number, and email address of the party seeking arbitration or small claims court, (ii) the product or service at issue, (iii) a description of the claim, (iv) the facts supporting the claim, (v) the damages claimed to have been suffered, and (vi) the relief being sought (the “Dispute Notice”). The Notice Period is designed to allow you or GiaFit to make a fair, fact-based offer of settlement if either chooses to do so. Engaging in this informal dispute resolution process is a requirement that must be fulfilled before commencing arbitration or a small claims court suit. The statute of limitations shall be tolled while the parties engage in the informal dispute resolution process required by this clause 27.2.

27.3 Agreement to Binding Arbitration, Except for Small Claims Court. If the parties do not reach an agreed upon solution within a period of forty-five (45) days from the time a Dispute Notice is sent pursuant to clause 27.2 above, then either party may initiate binding arbitration (or bring an action in small claims court pursuant to clause 27.4 below). All claims arising out of or relating to these Terms of Use (including their formation, performance and breach), the GIAFIT Service and/or the parties’ relationship with each other shall be finally settled by binding arbitration administered by the AAA, in accordance with the AAA Consumer Arbitration Rules (“Consumer Rules”), excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the AAA Consumer Rules. Except as stated to the contrary in clause 27.4 or 27.6 below, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or scope of these Terms of Use, including, but not limited to, any claim that all or any part of these Terms of Use is void or voidable. You or we may elect to appear at the arbitration by phone or, if you and we both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Use shall be subject to the Federal Arbitration Act.

The AAA Consumer Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. In an arbitration, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees (collectively, “AAA-related fees”), or $200.00 of such fees, whichever is less, and GiaFit shall pay the remainder of such fees. If the law allows for an award of attorney’s fees, expert witness fees, or costs incurred by you should you prevail in arbitration, an arbitrator may award them too. You will not be required to pay any fees or costs incurred by us if you do not prevail in arbitration, unless the arbitrator determines that the claim was brought in bad faith, in which case the arbitrator may award GiaFit its attorney’s fees, expert witness fees, AAA-related fees and/or costs.

Each side may, but is not obligated to, make a written settlement offer, inclusive of damages and attorney’s fees itemized separately, at any time prior to 30 days before an arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an interim award on the claim. If the party receiving the offer doesn’t accept it, and the arbitrator awards the receiving party an amount of damages that is less than or substantially the same as the amount of damages offered, then the arbitrator shall limit any recoverable attorney’s fees to the amount incurred at the time of the offer, so long as the attorney’s fees tendered in the offer are substantially the same as the fees incurred as of the offer date.

The parties understand that, absent these mandatory provisions, they would have the right to sue in court (other than small claims court) and have a jury trial. They further understand that the right to discovery may be more limited in arbitration or small claims court; and review of an arbitration award (or small claims court judgment) also may be limited.

27.4 Small Claims Court Remains Available. Notwithstanding anything in this Contract to the contrary, for disputes within the jurisdictional limit of the small claims court in the county encompassing the dispute, either you or GiaFit can choose to bring an individual action in small claims court instead of proceeding in arbitration; furthermore, if the claims in any request or demand for arbitration could have been brought in small claims court, then either you or GiaFit may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party and AAA of that choice in writing. You and we agree that, after receiving notice from you or us that the claims shall be decided by a small claims court rather than in arbitration, AAA shall administratively close the case. Any disagreements regarding the jurisdiction of the small claims court or the interpretation or application of the provisions of this clause 27.4 specifically shall be decided by a court rather than an arbitrator; pending resolution of any such disagreements by a court, you and GiaFit agree that the arbitration shall be stayed. If the provisions in this clause 27.4 are found to be invalid for some reason, then the provisions shall be severable; in no event will the provisions allow for an action or arbitration to be brought on a class or collective basis.

27.5 Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration or small claims court, either party may seek relief in a court of law (other than small claims court) for a claim arising under California’s Private Attorneys General Act.

27.6 Class Action and Class Arbitration Waiver. You and GiaFit acknowledge and agree that you and GiaFit are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class, collective, consolidated or representative proceeding. Further, unless both you and GiaFit otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any class, collective, consolidated or representative proceeding. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this clause 27.6, then you and GiaFit agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of clause 27 of the Terms of Use cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies. Notwithstanding anything in these Terms of Use to the contrary, all disputes related to the enforceability and applicability of this Class Action and Class Arbitration Waiver and the provisions of this clause 27.6 specifically shall be resolved by a court and not an arbitrator.

27.7 Exception – Mass Arbitration. Notwithstanding anything in these Terms of Use to the contrary, if GiaFit receives 30 or more Dispute Notices related to the same or similar subject matter and sharing common issues of law or fact, and counsel for the individuals submitting the Dispute Notices are the same or coordinated, then if the disputes proceed in arbitration, they shall proceed in a coordinated manner, as follows: (a) counsel for the claimants and counsel for GiaFit shall each select five (5) cases to proceed in arbitration on an individual basis in a series of “bellwether” proceedings; (b) the remaining cases shall be stayed and/or held in abeyance until the first ten (10) have been fully and finally resolved; (c) if the parties are unable to resolve the remaining cases after the conclusion of the initial ten (10) “bellwether” proceedings, then each side may select another five (5) cases (or such fewer number as remain unresolved) to proceed in arbitration on an individual basis, with the remaining cases, if any, stayed and/or held in abeyance; and (d) this process shall continue until the parties are able to resolve all of the claims. If the provisions of this clause 27.7 are found to be invalid for some reason, then the provisions shall be severable; in no event will the provisions allow for an action or arbitration to be brought on a class or collective basis.

27.8 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email: [email protected]. The notice must be sent within thirty (30) days of subscribing to the GIAFIT Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this clause 27. If you opt-out of these arbitration provisions, we also will not be bound by them.

27.9 Exclusive Venue for Litigation. In the event that the arbitration provisions set forth in clause 27 are determined not to apply, or if you have opted out of arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Cook County, Illinois (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Cook County, Illinois for any litigation other than small claims court actions. In the event of litigation relating to these Terms of Use, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.

Complaints

If you have any complaint please speak to us first, by contacting us using the details on our website.

If you live in France, in accordance with applicable consumer law, we offer you access to an alternative dispute resolution mechanism. Our mediator is AME CONSO, whose address is 11 Place Dauphine – 75001 Paris, France and whose website address is www.mediationconso-ame.com.

Contacting us

29.1 You can contact us by writing to us at [email protected] or 22 Centre Street, Auckland, New Zealand.

Appendix 1: Withdrawal Rights (EEA only)

Instructions on withdrawal:

Right of withdrawal

You have the right to withdraw from this contract within 14 days, without giving any reason. The withdrawal period will expire after 14 days from the day of conclusion of the contract.

To exercise the right of withdrawal, you must inform GiaFit Media Limited of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or email). You may use the below model withdrawal form, but it is not obligatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.

Model Withdrawal Form:

(Complete and return this form only if you wish to withdraw from the agreement. We recommend that if you purchased your Subscription from a third party other than GiaFit (such as an app store), you should submit this form to that third party in order to withdraw from the agreement.)

— To

GiaFit Media Limited

22 Centre Street, Freemans Bay, Auckland 1010, New Zealand

[email protected]

— I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract for the provision of the following service: [insert name of service and subscription type]

— Ordered on (*)/received on (*)

— Name of consumer(s)

— Address of consumer(s)

— Signature of consumer(s) (only if this form is notified on paper)

— Date

____________

(*) delete as appropriate.

GIAFIT TERMS OF USE

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