This Agreement may be amended from time to time as determined in Gymnify Technologies Inc. and/or its successors and assigns’ (hereinafter “Gymnify”) sole and absolute discretion.
1. Service Terms and Limitations
The Service is proprietary to Gymnify and is protected by intellectual property laws and international intellectual property treaties. Your access to the Service is licensed and not sold. Subject to the timely payment of all Fees (as defined herein and otherwise agreed) and the terms and limitations set forth in this Agreement, Gymnify agrees to the following:
(i) To provide you with (a) a personal, non-transferable and non-exclusive account enabling you to access and use the Service and (b) a limited, non-transferable and non-exclusive license to use the software and documentation necessary to access, explore and otherwise use Gymnify, or sites powered by Gymnify, in real time and to use the materials in Gymnify, or sites powered by Gymnify, in a manner consistent with paragraphs 4 (Online Communications) and 9 (Copyright) below.
(ii) To provide you with a limited, personal, non-transferable, nonsublicensable and non-exclusive license (a) to access and use Gymnify’s proprietary services and software.
1.2 User’s Agreement Restrictions
(i) You agree to: (a) maintain the security of your user identification, password and other confidential information relating to your Gymnify
account; (b) be solely responsible for the security, confidentiality and integrity of all messages and the content that you receive, transmit through or store on the Service; (c) be responsible for all charges resulting from use of your Gymnify account, including unauthorized use prior to your notifying Gymnify in writing of such use and taking steps to prevent its further occurrence by changing your password; (d) comply with the terms and conditions set forth herein; and (e) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of the Services or Gymnify.
(ii) You may not, directly or indirectly, (a) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), create derivative works based on the Material; or (b) copy the Material or engage in any other acts inconsistent with the principles of copyright protection and fair use, as codified in 17 U.S.C. Sections 106-110, without obtaining the express written permission of Gymnify and the copyright owner; or (iii) distribute (except for the purposes set forth above), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Material, in whole or in part; or (iv) remove any proprietary notices or labels on the Material. As between the parties, title, ownership rights, and intellectual property rights in and to the Material, and any copies or portions thereof, shall remain in Company and/or its content providers.
1.3 User Representations
You represent and warrant to Gymnify that: (i) you are over the age of eighteen (18) and have the power and authority to enter into and
perform your obligations under this Agreement; (ii) all information provided by you to Gymnify is truthful, accurate and complete; (iii) you are the authorized signatory of the credit or charge card provided to Gymnify to pay the Fees; (iv) you shall comply with all terms and conditions of this Agreement; and (v) you have provided and will provide accurate and complete registration information, including, without limitation, your legal name, address and telephone number. You agree to be financially responsible for your use of Gymnify (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.
You acknowledge and agree that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Gymnify may undertake from time to time; or (iii) causes beyond the control of Gymnify or which are not reasonably foreseeable by Gymnify.
You shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for your use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
Gymnify charges a subscription fee and/or other fees and costs (“Fees”) for the use of the Service which shall be deemed earned in full and non-refundable once collected. Gymnify expressly reserves the right to change the Fees at any time, upon notice to you. By registering for a Gymnify account, you agree to pay Gymnify the Fees for the Service applicable to the account level chosen. The Fees for the Service do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the Service. All Fees, Taxes (as defined herein) and other charges will be billed to your credit card at the current international currency conversion rate. You are responsible for and shall pay Gymnify all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”) for the use of the Services or resulting from this Agreement, whether imposed now or hereinafter by any governmental entity. You agree to promptly pay Gymnify in the event of any refusal of your credit card issuer to pay any amount to Gymnify for any reason. On any outstanding balance, you agree to pay the costs of collection, including attorney’s fees and costs. In the event you fail to pay any amount when due, Gymnify may immediately suspend or terminate this Agreement and your access to the Service.
The information presented or contained in Gymnify, or provided through the Service (collectively, the “Content”) is presented for the purpose of educating athletes, trainers, and the like on fitness, general health, and related training issues and topics. Nothing contained in Gymnify or the Content is intended to be instructional for medical diagnosis or treatment. The information should not be considered complete, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of your physician or other qualified health care provider. Information obtained from Gymnify is not exhaustive and does not cover diseases, ailments, physical conditions or their treatment. Should you have any health care related questions, please call or see your physician or other qualified health care provider promptly. Always consult with your physician or other qualified health care provider before embarking on a new treatment, diet or fitness program. You should never disregard medical advice or delay in seeking it because of something you have read on Gymnify. Information contained at Gymnify is for informational use only.
The Content and other information contained in Gymnify is compiled from a variety of sources (“Information Providers”). Neither Gymnify nor any Information Providers directly or indirectly practice medicine or dispense medical services as part of Gymnify. Gymnify is not a substitution for the services of a physician, a health provider, or any trained health professional. Our policy does not allow medical advice, emotional advice, dietary advice, or personal advice of any kind. These concerns should be addressed and discussed with your physician, health care provider, family nutritionist or your registered dietitian.
Adults should not commence any short or long-termed diet program without seeking competent medical advice.
Infants, toddlers and teenagers should only participate in a diet program under competent medical supervision.
You acknowledge that Gymnify is not engaged in the practice of medicine and that all decisions made will be the exclusive responsibility of you and your physician. Gymnify expressly disclaims any responsibility or liability for any adverse consequences or damages resulting from your reliance on Gymnify, the content or any information provided therefrom.
3.2 Fitness Disclaimer
The Content, including each article provided through the Service, is for entertainment purposes only. Gymnify recommends that you consult a physician before beginning any exercise program or diet. Gymnify is not a licensed medical care provider. You should understand that participating in any exercise program or diet can result in physical injury, and you agree to do so at your own risk. The findings and opinions of authors and personal trainers expressed herein are those of the author and do not necessarily state or reflect those of Gymnify.
3.3 Disclaimer of Warranties
Content on or available through the service are provided “as is” without warranty, express or implied. Gymnify hereby excludes all implied warranties of merchantability and fitness for a particular use or purpose with respect to the service or the content. There are no warranties which extend beyond the description on the face of this agreement. Gymnify and information providers make no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of the service. Gymnify and information providers cannot and do not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. Gymnify and information providers cannot and do not guarantee or warrant that files available for downloading from this online site will be free of infection by viruses, worms, trojan horses or other code that manifest contaminating or destructive properties. Gymnify and information providers do not warrant or guarantee that the functions or service accessed through Gymnify will be uninterrupted or error-free or that defects in Gymnify will be corrected. Users of Gymnify are responsible for (1) implementing and maintaining adequate procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output and (2) maintaining a means external to Gymnify for the reconstruction of any lost data.
This disclaimer of warranty constitutes an essential part of this agreement.
3.4 Disclaimer of Third Party Information
Statements made in websites, newsgroups, message boards, email, forums, conferences and chats reflect only the views of their authors. Forum managers, forum hosts, content providers, Information Providers or merchants appearing on Gymnify are not authorized Gymnify spokespersons, and their views do not necessarily reflect those of Gymnify.
4. Online Communications
Your participation in online communications occurs in real time and is not edited, censored, or otherwise controlled by Gymnify. Gymnify cannot and does not screen content provided by you to Gymnify or through the Service. Notwithstanding the foregoing, Gymnify reserves the right to monitor content on Gymnify and to remove content, which Gymnify, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of this Agreement or Gymnify’s operating policies for users of Gymnify (“Users”). Except as described herein, any communication which you post on any public area of Gymnify (e.g., comments, forums, etc.) is considered to be non-confidential. By placing any information or other material on such
publicly accessible locations on Gymnify (including but not limited to posting messages, uploading files, inputting data or engaging in any other form of communication), you automatically grant (or warrant that the owner of such content has expressly granted) to Gymnify a perpetual, royalty- free,
non-exclusive, irrevocable, unrestricted, worldwide license to use, copy, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, publish and/or broadcast, publicly perform or display any materials or other information (including without limitation, ideas contained therein for new or improved products or services) you submit to public areas of Gymnify (including but not limited to chat rooms, forums and bulletin boards) alone or as part of other works in any form, media, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses.
You may send and receive messages, electronic mail (“email”), engage in conferences and chats, download and upload files and otherwise use Gymnify as permitted by this Agreement, Gymnify operating policies and applicable law. Files that you upload, public messages that you send and your activity in conferences and chats are subject to review, modification and deletion without notice by the forum manager responsible for the Gymnify area where you’re uploading or other activity takes place (or by an individual designated by such forum manager for such purpose). Gymnify operating policies relating to online conduct, storage and deletion of email and uploaded files, conferences, and bulletin boards (“BBSs”). Gymnify reserves the right in its sole discretion to change such policies at any time. Files uploaded to a BBS may be subject to posted limitations on usage, reproduction and/or dissemination, and you are responsible for adhering to such limitations if you download them.
You are responsible for your communications and your use of Gymnify. You may not, under any circumstances, do any of the following: (a) use
simultaneous, unattended or continuous connections to Gymnify with one account; (b) post or transmit any message which is libelous or defamatory; (c) post or transmit any message, data, image or program which is indecent, obscene or pornographic; (d) post or transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion; (e) use Gymnify to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (f) intercept or attempt to intercept email or other private communications not intended for you; (g) send email to Users or other Internet users for any purpose other than personal communication, including to advertise or offer to unsolicited sell goods or services to other Users, use as a mass unsolicited distribution medium to communicate a generally unsolicited message, or use your email account as an address to which Users or other Internet users need to respond (except as otherwise expressly permitted by Gymnify; (h) send unsolicited email messages through third-party mail servers in order to relay your email or hide the origination of your email to others; (i) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; (j) upload files that contain a virus or corrupted data; (k) delete any author attributions, legal notices or proprietary designations or labels in a file that you upload to a BBS or Gymnify; (l) falsify the source or origin of software or other material contained in a file that you upload to a BBS or Gymnify; (m) use Gymnify in a manner that adversely affects the availability of its resources to other Users; (n) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a subscriber to Gymnify the User directory or any portion thereof other than for personal, noncommercial purposes (except as otherwise expressly permitted by Gymnify; (o) falsely purport to be an employee or agent of Gymnify (p) cause repeated disruptive incidents; (q) act, or fail to act, in your use of Gymnify, in a manner that is contrary to applicable law or regulation; or (r) engage in any other activity deemed by the Gymnify to be in conflict with the spirit or intent of this Agreement. In addition, you may not post or transmit any message which is harmful, threatening, abusive or hateful. It is not the intent of Gymnify to discourage Users from taking controversial positions or expressing vigorously what may be unpopular views in Gymnify, nonetheless, Gymnify reserves the right to take such action as it deems appropriate in cases where Gymnify is used to disseminate statements which are deeply and widely offensive and/or harmful. Each time you upload a file on Gymnify, you represent and warrant that you own or otherwise control the rights or have the necessary consents to do so, and you grant every other User the right to download and use such file. Your failure to observe any of the foregoing limitations or obligations may result in civil or criminal liability.
Gymnify reserves complete and sole discretion with respect to the operation of Gymnify. Gymnify may, among other things: (a) delete email or private messages if it has not been accessed by a User within the time established by Gymnify policies; (b) subject to Section 7 and Section 4, make available to third parties information relating to Gymnify and Users; and (c) withdraw, suspend or discontinue any functionality or feature of Gymnify.
Gymnify may, in its complete and sole discretion, review uploaded files, conferences, BBSs, forums, and chats and authorize restrictions on access thereto. Gymnify will not review the contents of email or private messages except as required or allowed by applicable law or legal process.
6. Other Sites
You are encouraged to use discretion while browsing the Internet using links initiated at Gymnify. Gymnify links may lead unintentionally to sites containing information that some people may find inappropriate or offensive. It may also lead to sites which contain inaccurate information, false or misleading advertising, or information which violates copyright, libel or defamation laws. Gymnify and Information Providers make no representations concerning any effort to review all of the content of sites listed in its Website.
7. Review of Postings and Uploads
Gymnify does not and cannot review all communications and materials posted or uploaded to Gymnify and is not responsible for the content of these communications and materials. However, Gymnify reserves the right to block or remove communications or materials that it determines, in its sole discretion, to be (a) abusive, libelous, defamatory or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of a copyright or trademark, other intellectual property right of another or (d) offensive or otherwise unacceptable to Gymnify. Any messages, advice, opinions or other information contained in any discussion area should not be construed as professional advice or instruction.
The entire contents of Gymnify are copyrighted as a collective work under the laws of the United States and other copyright laws. Gymnify holds the copyright in the collective work. The collective work includes works that are the property of the Information Providers which are also protected by
copyright and other intellectual property laws. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the material from the different areas of Gymnify solely for your own non-commercial use, unless otherwise permitted (e.g., in the case of electronic coupons, etc). Any redistribution retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from Gymnify. You may not use any Gymnify logo or any other proprietary graphic or trademark without Gymnify’s express written permission.
9. Licenses and Idea Submissions
You agree to grant to Gymnify a non-exclusive, worldwide, royalty-free, perpetual license, with the right to sublicense, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation,
ideas contained therein for new or improved products or services) you submit to public areas of Gymnify (such as BBSs, forums and chat rooms) by all means and in any media now known or hereafter developed. You hereby waive your moral rights in any such materials and information, and you hereby warrant that any such materials and information are original with you, or that you have the right to submit such materials and information. You agree that you shall have no recourse against Gymnify for any alleged or actual infringement or misappropriation of any proprietary right in your communication to us.
You agree to indemnify, defend and hold harmless Gymnify, its officers, directors, employees, agents, information providers and suppliers from and against all losses, expenses, damages and costs, including reasonable attorney’s fees, resulting from any violation of this agreement or any activity related to your account (including infringement of third parties’ worldwide intellectual property rights or negligent or wrongful conduct) by you or any other person accessing Gymnify using your service account.
11. Waiver, Release and Limitation of Liability
You agree that neither Gymnify, nor its officers, directors, employees, agents, information providers or suppliers shall have any liability to you under any theory of liability or indemnity in connection with your use of Gymnify, the service, or the content. You hereby release and forever waive any and all claims you may have against Gymnify, its officers, directors, employees, agents, information providers or suppliers (including but not limited to claims based upon the negligence of Gymnify, its officers, directors, employees, agents, information providers or suppliers) for losses or damages you sustain in connection with your use of Gymnify, the service, or the content.
Your use of the Service is solely at your own risk. You expressly acknowledge and agree that Gymnify shall not be responsible for any damage, loss, or injury to persons or property caused, or alleged to have been caused, directly or indirectly, by any instruction, infomration, product, or ideas provided, suggested or referenced on Gymnify, the Service, or the Content. No advice or information, whether oral or written, obtained by you from Gymnify or through the Service shall create any warranty not expressly made herein.
12. Third Party Rights
The provisions of paragraphs relating to Indemnification and Waiver, Release and Limitation of Liability are for the benefit of Gymnify and its officers, directors, employees, agents, licensors, suppliers, and Information Providers. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
13. Term Termination
Unless otherwise agreed, use of Gymnify services are available on a month-to-month or annual basis, with automatic renewal.
Gymnify may terminate your right to use Gymnify at any time, with or without cause, upon notice. Gymnify also reserves the right to terminate or suspend your Gymnify membership without prior notice, but Gymnify will confirm such termination or suspension by subsequent notice. The
provisions of paragraphs 1.2 (User’s Agreement), 1.3 (User Representations), 9 (Copyright), 10 (License, and Idea Submission), 11 (Indemnification), 12 (Waiver, Release and Limitation of Liability), 13 (Third Party Rights), 15 (Cancellation), 17 (Miscellaneous), and 18 (Notice) and the like, as amended, shall survive any termination of this Agreement.
You are responsible for all associated fees relating to your Gymnify account regardless of any election to cancel your subscription to Gymnify or any related services.
Please note: Notwithstanding anything to the contrary herein (including the provisions below), in the event you wish to cancel
your subscription to any services, (a) you must initiate the cancellation process through your Gymnify account, and (b) you must complete such cancellation in accordance with the instructions provided herein.
Cancellations are not retroactive therefore if a subscriber cancels after their membership period has begun, the subscriber will not be entitled to a refund for that period. Cancellations do not become effective until the starting date of the next subscription billing cycle. Unless otherwise agreed in writing, a service’s month begins on the date of subscription to Gymnify and concludes on the last day of the next full period following cancelation.
Refunds may be available to any pre-paid member who is unsatisfied with their membership to Gymnify if determined appropriate by Gymnify in its sole and absolute discretion. The refunded amount, if any, will be equal to the difference between the initial payment and the remaining balance on the account.
It is your responsibility to contact your gym, or service provider, first and Gymnify second, if at all, regarding any dispute and shall be bound by their respective decisions, in their sole and absolute discretion, regarding any such, including but not limited to refunds. Should you fail to follow the terms herein and instead cancel, dispute or take any similar action against charges referenced herein then you shall be in breach of this agreement and shall be liable to Gymnify for (a) $500 per such occurrence, or (2) actual damages, whichever is greater, plus attorneys fees and other costs of enforcement and collection.
16. Copyright or Intellectual Property Infringement Notification
Gymnify respects the intellectual property rights of others.
You can notify Gymnify of possible copyright infringement, and Gymnify will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please send the details to firstname.lastname@example.org.
17. Export Controls
(i) You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of
Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Material in violation of any such restrictions, laws or regulations. By downloading or using the Material, you are agreeing to the foregoing and you
are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
(ii) Any software which is downloaded from or made available via Gymnify for or on behalf of the United States of America, its agencies
and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.
18. Privacy and Data Security for Commercial Users
18.1 For U.S. Data
Individual gyms, coaches, trainers, athletes, or other such using the Services (“Commercial Users”) agree to comply with all applicable data privacy
and security laws and will provide individuals with privacy notice as necessary. Commercial Users agree to implement additional data privacy and security requirements as may be reasonably required by applicable law.
18.2 For European Data
requirements as may be reasonably required by applicable law.
This Agreement shall be governed by and construed in accordance with the laws of the United States. You agree that any legal action or proceeding between Gymnify and you for any purpose concerning this exclusively in a court of competent jurisdiction sitting in Birmingham, Alabama, United States. Any cause of action or claim you may have with respect to Gymnify must be commenced within one (1) year after the claim or cause of action arises. Gymnify failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any user, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 11, 12 and 13 is intended to benefit Gymnify and its officers, directors, employees, agents, licensors, suppliers, and Information Providers. Gymnify may assign its rights and duties under this Agreement to any party at any time without notice to you.
Gymnify may deliver notice to you under this Agreement by means of electronic mail, a general notice on Gymnify, or by written communication delivered by mail to your address on record in Gymnify’s account information. You may give notice to Gymnify at any time via electronic mail to Gymnify by emailing us at admin@myGymnify.com .
Gymnify EU Joint Controller Agreement
This Joint EU Joint Controller Agreement (“JCA”) applies to Commercial Users using the Gymnify Services that have Personal Data to which
the GDPR applies. Gymnify and Other Commercial Users intend to function as joint controllers in relation to the Personal Data described in Section 2 below. Gymnify and Users desire to clearly set forth their respective roles, relationships, and responsibilities for complying with the Data Protection Laws as they apply to the Personal Data.
The parties agree as follows:
Definitions. The following terms shall have the meanings set out below:
1.1 “Data Subject”, “Processing”, “Processor”, “Subprocessors”, “Supervisory Authority”, “Personal Data Breach”, “Joint Controller” and “Special Categories of Personal Data” shall have the same meaning as in the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”).
1.2 “Data Protection Laws” shall mean the GDPR and any data protection laws amending, replacing, implementing, or superseding the GDPR
including (a) those following any exit by the United Kingdom, or any other Member State, from the European Union, or (b) the data protection laws of any other member of the European Economic Area that is not a member of the European Union.
1.3 “Personal Data” means information relating to a Data Subject that is processed by Gymnify or User when acting as a Joint Controller as described in Section 2.
1.4 “Party” means Gymnify, Commercial User, or other such.
1.5 “Parties” means Gymnify,
1.6 “Restricted Transfer” means the transfer of Personal Data that is located in the EEA from a Party to a Party that is not in the European Economic Area (“EEA”), where such transfer would be prohibited by Data Protection Laws in the absence of an adequate transfer mechanism approved by the European Commission.
1.7 “Standard Contractual Clauses” refers to a contract, or contract terms, approved by the European Commission for the transfer of information from a controller in the EEA to a controller that is not located in the EEA.
Data Subject to Joint Control. The Parties acknowledge and agree that they have jointly determined the purpose and/or the means for the processing, of the following information:
2.1 Description of Personal Data that is subject to joint
Any personal data supplied by data subjects to Gymnify or the User and processed by Gymnify in connection with the Services.
2.2 Description of the purpose of processing:
The purpose of processing is as set out and allowed by the Services.
Data Protection Compliance Obligations.
3.1 Allocation of Compliance Obligations. The Parties agree to allocate compliance obligations for the Data Protection Laws as described in
the following table. If a single controller is listed as responsible for a compliance obligation, that controller shall be solely and exclusively responsible and liable for the compliance of both controllers for the obligation noted. If multiple controllers are listed as responsible for a compliance obligation, or if no controller is listed as responsible for a compliance obligation, each controller shall be responsible and liable for their own compliance obligations, and shall not be responsible or liable for the compliance of the other controller.
3.2 Recovery of Costs for Compliance. The parties agree that between themselves the costs and expenses incurred by a Controller in the
fulfilment of the compliance obligations identified within Section 2.1 will be allocated as follows: Option 3: Controller A shall have a right to reimbursement for its reasonable expenses incurred toward compliance.
3.3 Data Subject Requests. The Controller responsible for Data Subject Access Requests, Data Subject Rectification Requests, or Data
Subject Erasure Requests, as set forth in Section 3.1 above, may request that the non-responsible Controller take certain actions with Personal Data under its control in order to comply with these requests. The non-responsible Controller shall either 1) promptly take such actions and certify their
completion in writing to the responsible Controller, or 2) provide the other controller with a written explanation to the data subject of why such action is not required by the Data Protection Laws and become exclusively liable for its refusal to comply.
3.4 Reasonable Cooperation of Non-Responsible Controller. A Party that is not responsible for a compliance obligation, or a Party that is
jointly responsible for a compliance obligation, shall reasonably cooperate with the Responsible Controller as necessary to fulfil the Responsible
Compliance Obligation Gymnify (“Controller A”) Other Commercial User(s) (“Controller B”)
Data Inventory. Maintaining a record of processing activities (e.g., data inventory) in compliance with GDPR, Article 33. Controller A will maintain a record of processing activities. Controller B is not required to maintain a record of processing activities, but shall provide Controller A all information needed to keep Controller A’s record current.
Lawful Purpose. Validating the sufficiency of the lawful basis upon which processing is based in compliance with GDPR, Article 6,
Article 7, and Article 9 (e.g., documenting consent if consent is the lawful basis for processing). Controller A will maintain documents sufficient to demonstrate the lawful basis of processing. Not responsible.
Privacy Notices. Providing data subjects with an accurate privacy notice, if required, pursuant to GDPR, Articles 13 and/or 14 and endeavouring to make the nature of this joint controller relationship available to the data subjects pursuant to GDPR Article 26(2).
Controller A will provide privacy notice.
Controller B will provide privacy notice.
Data Subject Access Requests. Respond to requests from data subjects for access to their Personal Data, pursuant to GDPR, Article 15 and/or
20. Controller A will respond to data subject access requests. Controller B will respond to data subject access requests.
Data Subject Rectification Requests. Respond to requests from data subjects to correct their Personal Data, pursuant to GDPR, Article
16. Controller A shall be responsible for responding to rectification requests. Controller B shall be responsible for responding to rectification requests.
Data Subject Erasure Requests. Respond to requests from data subjects to erase their Personal Data, pursuant to GDPR, Article 17. Controller A shall be responsible for responding to erasure requests. Controller B shall be responsible for responding to erasure requests.
Data Protection Officer. To the extent one is required, appoint a Data Protection Officer pursuant to GDPR, Article 37. Not
responsible. Controller B shall appoint a DPO if required for the processing described in Section 2.
EU Representative. To the extent one is required, appoint a representative within the Europe Union pursuant to GDPR, Article 27. Not responsible. Controller B shall appoint a European representative if required.
Data Protection Impact Assessment.
To the extent one is required, conduct a data protection impact assessment pursuant to GDPR, Article 35. Controller A shall be responsible for conducting DPIAs. Not responsible.
Contacting Regulators In the Event of a Security Breach.
To the extent required, contacting regulators to notify them of a security breach
pursuant to GDPR, Article 33. Controller A shall be responsible for notifying regulators. Controller B is not
responsible for notifying regulators, but must notify Controller A immediately upon becoming aware of a security breach.
Contacting Data Subjects In the Event of a Security Breach.
To the extent required, contacting data subjects to notify them of a security breach pursuant to GDPR, Article 34. Controller A shall be responsible for notifying data subjects. Controller B shall be responsible for notifying data subjects and shall provide Controller A with a copy of scuh notification.
Responding to Regulatory Inquiries. To the extent required, responding to an inquiry from a supervisory authority brought pursuant to GDPR,
Article 57. Controller A shall be responsible for responding to an inquiry from a supervisory authority. Not responsible.
Mutual Obligations for Compliance. In addition to the obligations identified in Section 2.1 each Party agrees, represents, and warrants, to the following:
4.1 Data Minimization. The Parties shall keep Personal Data under their control in a form that permits identification of Data Subjects for no longer than is necessary for the purpose for which the data was Processed.
4.2 Access to Compliance Documents. Each Party shall make records relating to compliance available to the other Party, or any third party with a right to view such records, upon request.
4.3 Confidentiality. Each Party shall take reasonable steps to ensure the reliability and confidentiality of any employee, agent or
contractor who may have access to the Personal Data, ensuring that access is strictly limited to those individuals who need to access the relevant Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with applicable law.
4.4 Security. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Parties shall each, individually, implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including, as appropriate, the measures referred to in Article 32 of the GDPR. In assessing the appropriate level of security, each Party shall take into account the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, damage, unauthorized disclosure of, or access to Personal Data transmitted or stored.
4.5 International Data Transfer. In the event that the parties engage in Restricted Transfers, the following adequacy measures shall be used:
Transfers from Gymnify to Commercial user
Transfers from Commercial User to Gymnify
No restricted transfer is anticipated Enter into the Standard Contractual Clauses for Controller to Controller transfers
If the parties rely upon the Standard Contractual Clauses, the terms of those clauses shall take precedence over those in this Agreement.
In the event that a Standard Contractual Clause ceases to be recognized as a legitimate basis for the transfer of Personal Data to an entity located outside the EEA, the Parties shall cooperate to identify and implement an alternative adequacy measure recognized under the Data Protection Laws.
5.1 Onward Transfers. The parties may transfer Personal Data to third parties as determined reasonable by Gymnify.
To controllers that are not a party to this agreement. Controller A may provide Personal Data to a Controller that is not a party to this Agreement. Controller B may provide Personal Data to a Controller that is not a party to this Agreement.
To processors. Controller A may provide Personal Data to a processor. Controller B may provide Personal Data to a processor.
5.2 Onward Transfers To Processors. If a Party is permitted under this Agreement to disclose Personal Data to a third party Processor, it will comply with all obligations imposed by the Data Protection Laws, including, but not limited to, those obligations imposed by Article 28 of the GDPR. Upon
request, a Party engaging a Processor shall provide the other Party:
5.2.1 Details of the Processing to be undertaken by each Processor.
5.2.2 Evidence that the terms in the contract with each Processor comply with GDPR Article 28.
5.2.3 Insofar as a processor contract involves a Restricted Transfer, information concerning the adequacy measure in place as described by the Data Protection Laws.
5.2.4 A representation that the Party remains fully and exclusively liable for any failure by the Processor to fulfil its obligations
in relation to the Processing of any Personal Data.
Lead Supervisory Authority. The parties agree that the main establishment involved in the processing will be located within the following
country and that the supervisory authority within that jurisdiction will, in most, if not all, cases be the lead supervisory authority in relation to the
processing described in Section 2: The Member State in which the main establishment is based differs based upon the context of the processing.
Termination. Upon Termination or Expiration of this Agreement each Party will become a separate Controller of any Personal Data
that had been processed under this Agreement and that remains in that Party’s possession and may no longer rely upon the allocation of compliance obligations in Section 2.1.
Audit Rights. Each Party subject to material GDPR obligations hereunder shall be entitled to verify, either personally or by means of an independent third party bound by sufficient confidentiality obligations that the other Party is acting in compliance with this Agreement and the Data Protection Laws (an “Audit”). As part of an Audit, the audited Party shall provide the other Party with all information reasonably required to carry out such Audit. Audits may occur no more than once per calendar year and shall be conducted at audited Party’s place of business at a time reasonably acceptable to the Audited Party. The auditing Party must notify the Audited party of its intent to Audit at least fifteen business days prior to conducting the Audit. The Auditing Party shall use best efforts to minimize the use of the audited Party’s personnel time and disruption to the audited
Indemnification. The Parties will indemnify each other and hold each other harmless from any cost, charge, damages, expense or loss which
they cause each other as a result of their breach of any of the provisions of these clauses. Indemnification hereunder is contingent upon (a) the Party to be indemnified (the “Indemnified Party”) promptly notifying the other Party (the “Indemnifying Party”) of a claim, (b) the Indemnifying Party having sole control of the defence and settlement of any such claim, and (c) the Indemnified Party providing reasonable cooperation and assistance to the Indemnifying Party(ies) in defence of such claim. As between the Parties, each Party shall be fully liable for a Personal Data Breach of Personal Data that is in its possession and control, and shall indemnify and defend the other Party for damages resulting from the same. The Parties shall co-operate in the investigation, mitigation, and remediation of any Personal Data Breach, including supplying all necessary information in accordance with the notification timelines established by the Data Protection Laws. Each party shall implement organizational measures designed to facilitate data breach response in accordance with the timeliness, risk assessment, and other requirements of the Data Protection Laws.
Limitation of Liability. Except for indemnification obligations described in Section 9, FOR ALL DAMAGES RELATING TO OR ARISING OUT
OF THIS AGREEMENT, IN NO EVENT WILL GYMNIFY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS ADDENDUM (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT, BREACH OF WARRANTY OR IN TORT, INCLUDING NEGLIGENCE, AND EVEN IF SUCH PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. The Parties agree that this limitation of liability is an essential part of this Agreement, and that the Parties would not have entered into this Agreement without it.
General Terms. Should any provision of this Agreement be invalid or unenforceable, then the remainder of this Agreement shall remain
valid and in force. The invalid or unenforceable provision shall be either: (a) amended as necessary to ensure its validity and enforceability, while
preserving the intent of the provision as closely as possible or, if this is not possible, (b) construed in a manner as if the invalid or unenforceable part
had never been contained therein. To the extent that the terms of this Agreement conflict with the terms of any other agreement entered between the parties that relates to the processing of the Personal Data, the terms within this Agreement shall supersede and replace the conflicting term. Nothing within this Agreement shall apply to Personal Data that is not subject to the Data Protection Laws.
References to the GDPR are not intended to limit the scope of the compliance obligation to the extent that similar obligations are
required under other Data Protection Laws.
If you have any questions, comments, or complaints concerning our privacy practices please contact us at the appropriate address
below. We will attempt to respond to your requests and to provide you with additional privacy-related information.
If you are not satisfied with our response, and are in the European Union, you may have a right to lodge a complaint with your local
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