Last Modified: October 28, 2019
This Terms of Service (“Agreement”) is between Athletes’ Performance, Inc. and its subsidiaries (“EXOS”) and the person who has checked the “AGREE” box at the end of this Agreement (“you,” “your,” or “yours”). This Agreement describes the terms under which you may interact with EXOS products, software, and service offerings (the “Services”). By checking the “AGREE” box, you are agreeing to comply with and be bound by all the terms of this Agreement. EXOS MAY CHANGE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME. IN SUCH CASE, YOU MAY BE REQUIRED TO AGREE TO THE CHANGED AGREEMENT AS A CONDITION OF YOUR CONTINUED USE OF THE SERVICES.
YOU HEREBY REPRESENT THAT YOU ARE OVER EIGHTEEN (18) YEARS OF AGE, THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT, AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
I. Facility and Equipment.
A. Equipment. The Services may contain use of various systems and products which are electromechanical (such as treadmills with video a screen) and may require you to provide certain information prior to using that equipment (“Interactive Equipment”). The term “Services” shall include Interactive Equipment. Other equipment is static (such as barbells and jump ropes) and does not require you to provide any information (“Static Equipment”).
B. Registration and Check-In.
1. Registration and Accounts. Before you are able to access the Services, you will need to register and create an account (“Account”) by fully and accurately completing the applicable sign up page, and providing to EXOS such fully accurate information as EXOS may reasonably require, including without limitation, your name, email address, and other similarly related information (collectively, “Registration Information”); you agree to keep all Registration Information updated and correct. Your Account is personal to you, and you may not share it or allow it to be used by anyone other than you. You are solely responsible to ensure that your Account is used only by you and in a manner consistent with this Agreement. In some instances, EXOS shall allow you to select a username and password for your Account, and in other instances, your account may be created through single sign-on, subject to EXOS’ rules. You agree to keep such username and password confidential, and not allow any third party to access or use such username or password. You agree to indemnify and defend EXOS from and against any losses, liabilities, and the like arising from any disclosure or misuse of your username or password.
2. Check In. Once you have created an Account, you may need to check in to the applicable facility where you access the Services (the “Facility”), and in other situations, there may be additional requirements to access the Services. In instances where you are accessing the Facility, the manner in which you check in will depend upon the Facility’s practices and procedures, and may include any of the following or such other means as EXOS may require from time to time: (a) you may enter your work telephone number and personal identification number (“PIN”); (b) you may use your applicable identification badge; (c) you may use an employer-provided key fob; or (d) you may use another method as reasonably required by EXOS from time to time.
II. Interactive Equipment.
Each piece of Interactive Equipment is different and has different features and capabilities. As part of your interaction with Interactive Equipment, you may be prompted to agree to third-party terms and conditions. In the event EXOS, or a third party with whom EXOS has a relationship with, provides new Interactive Equipment from time to time, the terms of this Agreement shall apply to such Interactive Equipment. EXOS reserves the right to amend such Interactive Equipment terminology from time to time. The following terms apply to all pieces of Interactive Equipment listed below:
A. EXOS Cardio. The EXOS Cardio™ System (“Cardio”) uses a software-driven screen display together with a cardiovascular exercise device such as stationary bicycle or a treadmill to provide workouts and workout data tailored to your use. In order to use Cardio, you must first complete a profile that includes information about your height, your weight, and other similarly related information in order to allow Cardio to generate an evaluation and recommended exercise plan. To do so, Cardio will provide a diagnostic period of exercise, during which period you will walk or run on the treadmill based on your selected protocol, and during which Cardio will ask questions regarding your level of exertion. Based on the information gathered during the diagnostic period, Cardio will provide a recommended exercise plan, including fitness “zones” that will automatically change as your fitness changes, and will be available to you when you use Cardio. Cardio will also automatically prompt you to do re-evaluations on a regular basis.
B. Journey. The EXOS Journey™ System (“Journey”) is software that is accessible via web application and provides a “digital hub” to track your performance and wellness. In order to use Journey, you must complete an initial self-evaluation, including questions regarding your lifestyle, mindset, nutrition, movement, and recovery (“MNMR”). Then, Journey will prompt you to set fitness and wellness goals. Journey will also provide you a personal fitness quotient score (“PQ”, as hereinafter defined), as well as certain online content such as videos, articles, and tools such as a meal builder. EXOS program administrators will also be able to monitor your progress using the Journey administrative dashboard.
C. 3D MQ. The EXOS 3D Movement Quotient™ System (“3D MQ”) is a marker-less biomechanics assessment designed to assess movement quality. Upon stepping into the capture space, 3D MQ places a three-dimensional skeleton on your body which captures kinematic data (joint angles, rotation velocities, center of mass shifts, etc.) as you perform a protocol of assorted movements. 3D MQ takes the captured data and automatically processes it creating an overall score, movement component scores, and a prioritization of your primary area of focus for improving movement quality. If you have a Journey account, 3D MQ integrates your score and focus area into Journey, which in turn drives a personalized recommendation of a series of movements designed to improve your primary area of focus.
D. Circuit. The EXOS Circuit™ System (“Circuit”) is a series of looping movement videos that are presented via a kiosk and programmed on a regular basis by EXOS staff, for your instruction and use. You will not need to check in separately to use Circuit.
E. Performance Kiosk. The EXOS Performance Kiosk™ (“Performance Kiosk”) is a compact exercise station providing touchscreen access to exercises that you can tailor to your fitness objectives and time budget, potentially including a collection of Static Equipment that you can use to perform those exercises.
F. Performance Quotient Tool. The EXOS Performance Quotient (“PQ”) Tool is software that is accessible via web application and provides a questionnaire focused on your behaviors and ability related to MNMR. Your questionnaire responses will be paired with performance test data (vertical jump, 10-yard sprint, etc.) to create a personalized PQ score, which is a descriptor of your overall ability across MNMR. In order to use PQ, an EXOS employee enters your email into the practitioner-facing portal, and an email is auto-generated and sent to you. In the email, a link will take you to the website to answer the questionnaire. Once you execute the performance tests onsite, an EXOS employee will enter your data in the practitioner-facing portal and a report will be automatically generated to be printed and/or emailed to you.
III. Static Equipment.
EXOS provides several varieties of Static Equipment at the Facility which you may use alone or in conjunction with Interactive Equipment.
IV. Health Safety.
A. Warning of Risk. You understand that all physical exercise involves an inherent potential risk for injury, sickness, death, and related damage. You also hereby expressly assume all risks that you may suffer injury, sickness, death, or such damage as a result of accessing or using the Services. You may be required to execute an applicable waiver at your Facility.
B. Disclaimer. You hereby agree for yourself and on behalf of your family, heirs, personal representatives, successors, and assigns, that EXOS, including its members, managers, officers, employees, agents, business partners, and affiliates (collectively, the “Released Parties”), will not be liable for any injury, sickness, death, or damage suffered through your use of the Services including without limitation doing exercises or conducting activities described or contained therein. You also hereby agree to hold the Released Parties harmless from any and all injuries, sickness, death, or damage sustained by you through use of the Facility and Static/Interactive Equipment, and to indemnify the Released Parties from any and all associated claims, demands, threats, suits or proceedings, and any associated losses and liabilities, including attorneys’ fees, which directly or indirectly result from or in connection with such use. You hereby forever and irrevocably release and discharge, and hereby agree to release and discharge, the Released Parties from all such claims, demands, threats, suits or proceedings, and any associated losses or liabilities.
C. Physical Condition. You hereby represent and warrant that you are in good physical condition, and that your use of the Services has been reviewed and approved by your personal physician. YOU AGREE THAT: (A) YOU WILL USE THE SERVICES ONLY IF YOU REASONABLY BELIEVE DOING SO WILL NOT CAUSE YOU HARM; AND (B) YOU WILL IMMEDIATELY CEASE ANY USE OF THE SERVICES IF THAT MAKES YOU FEEL UNWELL, AND SHALL THEN IMMEDIATELY SEEK MEDICAL ATTENTION. You understand and agree that you are making the foregoing representations and warranties and that EXOS will rely on them, and you further understand and agree that EXOS is in fact relying on those representations and warranties in making the Services available to you.
D. No Medical Advice. If you have or suspect that you have a medical problem, you should immediately contact your health care provider. EXOS’ staff, if applicable, are not medical personnel, and do not provide medical advice.
V. Limitation of Liability.
IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF HOW AND WHERE ARISING. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE RELEASED PARTIES WITH RESPECT TO THE FACILITY, THE EQUIPMENT, OR ANY OTHER MATTER EXCEED ONE THOUSAND DOLLARS ($1,000) REGARDLESS OF THE CLAIM AND REGARDLESS OF HOW ARISING. Certain jurisdictions do not permit the limitation of certain liabilities, so the foregoing may not apply to you.
EXOS PROVIDES THE FACILITY (IF PROVIDED BY EXOS) AND ALL THE SERVICES ON AN “AS IS” BASIS, WITHOUT WARRANTY. EXOS HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Certain jurisdictions do not permit the disclaimer of certain warranties, so the foregoing may not apply to you.
The term of this Agreement will continue so long as you have an Account; provided, however, EXOS may terminate this Agreement without cause at any time. For the avoidance of doubt, each use of the Services shall constitute agreement by you to the terms contained herein. EXOS may suspend access to your Account and the Services.
IX. Copyright Complaints.
EXOS respects the intellectual property of others and expects others to respect EXOS’ intellectual property. If you believe that your work has been copied or otherwise appears on EXOS’ website or in the Services in a way that constitutes copyright infringement, please notify us immediately in writing (via certified mail, return receipt requested, or via overnight delivery service) at the following address: EXOS Data Privacy Officer, EXOS, 2629 E. Rose Garden Lane, Phoenix, AZ 85050 or by email at Privacyofficer@teamexos.com.
If you have any questions or comments about EXOS or this Agreement, you may contact the EXOS Data Privacy Officer at Privacyofficer@teamexos.com by email or 2629 E. Rose Garden La. Phoenix, AZ 85050 by mail.
XI. Jurisdiction and Venue.
This Agreement shall be subject to the laws of the State of Arizona as applicable to contracts entered into and performed in Arizona between Arizona residents and without regard to its conflicts of laws principles. The State and Federal courts located in Maricopa County, Arizona, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. The parties hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or the actions of any party in the negotiations, administration, performance, and enforcement thereof.
You agree that any dispute, controversy, or claim arising out of, or relating to, this Agreement shall be settled by confidential arbitration in Maricopa County, Arizona in accordance with the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes) then in effect. A single arbitrator with knowledge of athletic training and the health industry shall conduct the arbitration and that arbitrator may grant injunctions or other relief in such dispute or controversy. The parties shall mutually agree upon such arbitrator, but if the parties have not agreed on an arbitrator within thirty (30) days of the date of the notice of intention to arbitrate, AAA shall select the arbitrator from its list of commercial arbitrators. The arbitrator shall conduct a single hearing no longer than one (1) day in duration for the purpose of receiving evidence and shall render a decision within fifteen (15) days after the conclusion of the hearing. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any State or Federal court. Although the cost of the arbitrator shall be borne by EXOS, all other expenses of arbitration shall be paid by the party who incurred them. You further agree that you shall not participate in any way in any class action in connection with any such dispute, controversy or claim, either as a class representative plaintiff or as a member of a putative class in regard to this Agreement.
Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission of EXOS. Any purported assignment without such permission shall be void. This Agreement, including corresponding access to your Registration Information may be assigned by EXOS in whole or in part without notice. Any waiver of any rights of EXOS under this Agreement must be in writing, signed by EXOS, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. Your use of the Facility shall at all times comply with all applicable laws, rules, and regulations. This Agreement is the entire agreement between the parties with respect to this subject matter and supersedes any and all prior or contemporaneous or additional communications, negotiations, or agreements with respect thereto. You will indemnify and hold the Released Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or regulation, or the rights of any third party. YOU AND EXOS AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THE FACILITY, THE EQUIPMENT OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.