IMPORTANT NOTE: SECTION XVII CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT MAY AFFECT YOUR RIGHTS CONCERNING ANY DISPUTE BETWEEN YOU AND PRECOR. PLEASE READ IT.
The Preva website (www.preva.com) and the User Services (defined below) are created and controlled by Precor Incorporated (“Precor,” “We,” “Us,” “Our”), located at 20031 142nd Avenue NE, Woodinville, Washington 98072-4002, USA.
You hereby represent and agree that (i) you are a natural person and (ii) you are a registered user of the User Services.
User Account and Password: As a registered user of the User Services, you must establish an account. You are solely responsible for protecting the confidentiality of such account, including, but not limited to, protecting your password and any Preva identification card. You should never disclose your account information or password to anyone or allow others to use your Preva identification card. If you have reason to believe that your account is no longer secure (e.g., loss, theft or unauthorized disclosure or use of your Preva identification card, account information or computer or mobile device used to access the User Services), you must promptly change the affected account information and notify Precor. YOU ARE SOLELY RESPONSIBLE FOR ANY ACTIVITIES WHICH OCCUR THROUGH YOUR ACCOUNT. You agree to immediately notify us of any unauthorized use of your account. WE ARE NOT RESPONSIBLE FOR ANY LOSSES ARISING OUT OF UNAUTHORIZED USE OF YOUR ACCOUNT.
You will comply with all applicable local, state, federal laws when using the User Services and, if using the User Services outside of the United States, not use the User Services in a manner that would violate any applicable local or foreign laws. You shall use the User Services solely for your personal use and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the User Services available to any third party; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the User Services or the data contained therein; or (vi) attempt to gain unauthorized access to the User Services or its related systems or networks.
Subject to the terms and conditions herein, we hereby grant you a limited, nontransferable, nonexclusive, revocable, nonsublicenseable, personal right to access and use the User Services we make available to you, solely for your personal, noncommercial use. Precor and its licensors retain all right, title, and interest in and to the User Services and any and all content or other work of authorship made available through the User Services not expressly granted to you herein.
The limited license granted to you pursuant to the Terms does not include any resale or commercial use of the User Services or any content made available through the User Services. You may not reproduce, duplicate, copy, sell, resell, modify, reverse engineer, decompile, disassemble or create derivative works of or otherwise exploit for any commercial purpose the User Services, the content thereof, or any portion of the foregoing, without express written consent of Precor. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Precor and our affiliates or licensors without our express written consent. None of the User Services or the content thereof may be retransmitted without the express written consent of Precor, nor may it be used on any other web site or stored on any networked computer environment. You may not use any metatags or any other “hidden text” utilizing Precor’s name or trademarks without the express written consent of Precor. Any unauthorized use terminates the permission and/or license granted by Precor without the need for further action by Precor.
If you have any questions or concerns about your account, please contact Customer Support at firstname.lastname@example.org.
You agree to provide us with accurate and complete information required to register for the User Services and at other times as required in connection with using the services User Services (“Registration Information”). You also agree to maintain and update your Registration Information as necessary to keep it accurate, current and complete.
You own all of your own personal data that is captured and stored via the User Services or on the Preva Platform. Precor is not responsible to make any data available outside the normal use of Preva.
Third Party Content
User Generated Content
You hereby agree: (i) that Precor has no obligation to, review the communications, materials, information, opinions, and other content posted and/or submitted by users and facilities accessing the User Services (including, without limitation, in or on bulletin boards, chat rooms, comment pages, community pages or other forums on the User Services) (collectively, "User Generated Content"); (ii) that Precor is not in any manner responsible for User Generated Content; (iii) that Precor does not guarantee the accuracy, integrity or quality of User Generated Content; and (iv) that Precor cannot assure that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable User Generated Content will not appear on the User Services. You acknowledge that by providing you with the ability to access and view User Generated Content on the User Services, Precor is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any User Generated Content or activities of users on the User Services. Without limiting the generality of the foregoing, you acknowledge and agree that the information, materials and opinions expressed or included in any User Generated Content are not necessarily those of Precor or its affiliated or related entities or content providers.
Notwithstanding the foregoing, you acknowledge and agree that Precor has the absolute right to monitor User Generated Content posted on the User Services in its sole discretion. In addition, Precor reserves the right to alter, edit, refuse to post or remove any such User Generated Content, in whole or in part, for any reason or for no reason, and to disclose such User Generated Content and the circumstances surrounding their transmission to any third party. You agree that we do not have any obligation to use or respond to any User Generated Content.
You agree that you shall immediately notify Precor in writing of any objectionable content appearing on the User Services. Precor will make good faith efforts to investigate allegations that any User Generated Content violates the Terms but (a) makes no warranty to you that it will edit, remove, or continue to permit the display of any specific User Generated Content, whether or not subject to such allegations, and (b) will have no liability whatsoever for editing, removing, or continuing to permit the display of any User Generated Content whatsoever.
Any use of any content on the User Services, including, without limitation, User Generated Content will be at your own risk.
Use of Information Submitted
You agree that Precor is free to use any comments, information, designs, ideas, or other content contained in any User Generated Content posted by you to the User Services, or created by you while accessing the User Services (including, without limitation, any designs or other materials created or submitted by you on the User Services), or contained in any communication you may send to Precor or submit to the User Services without notice, compensation or acknowledgement to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the User Services or other products or services.
Mobile and Other Devices
We currently provide our mobile services for free, but please be aware that your carrier's normal rates and fees, such as text messaging fees, will still apply.
Additional Terms and Conditions
Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the User Services, including contests, promotions or other similar features, all of which terms are made a part of the Terms by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between the Terms and the terms posted for or applicable to a specific portion of the User Services or for any service offered on or through the User Services, the latter terms shall control with respect to your use of that portion of the User Services.
YOU ACKNOWLEDGE AND AGREE THAT THE USER SERVICES AND ALL CONTENT THEREOF ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING ANY OF THE FOREGOING, NONE OF PRECOR, ITS AFFILIATES OR ITS AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “PRECOR PARTIES”) WARRANT THAT THE USER SERVICES WILL OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE USER SERVICES OR THE SERVER THAT MAKES SUCH SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE, BY YOUR USE OF THE USER SERVICES, THAT YOUR USE OF THE USER SERVICES IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE USER SERVICES, AND THAT NONE OF THE PRECOR PARTIES SHALL BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THE USER SERVICES.
The User Services may provide physiological data about your body along with information applications and content published over the Internet and are intended only to assist users in their personal health, fitness and wellness efforts. Precor is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in the User Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to professional medical advice before beginning any health, fitness & wellness related effort or regimen.
Limitation of Liability
YOUR SOLE REMEDY FOR DISSATISFACTION WITH YOUR USE OF THE USER SERVICES AND/OR OUR CONTENT IS TO STOP USING THE USER SERVICES AND/OR THE CONTENT. YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL THE PRECOR PARTIES BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE USER SERVICES OR ANY OF THE CONTENT, INCLUDING: LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; ANY FAILURE OF PERFORMANCE, DENIAL OF SERVICE, ATTACK, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OR COMPUTER VIRUS; OR THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OR USE OF YOUR INFORMATION, EQUIPMENT OR PROPERTY, EVEN IF THE PRECOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE EXCLUDED DAMAGES. FURTHER, THE PRECOR PARTIES WILL NOT BE RESPONSIBLE FOR ANY FAILURE TO COMPLY, BY YOU OR ANY THIRD PARTY, WITH THE TERMS OR WITH APPLICABLE FEDERAL, STATE AND LOCAL LAWS. THESE LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF: (I) ANY NEGLIGENCE OR GROSS NEGLIGENCE OF ANY PRECOR PARTY OR (II) WHETHER THE LIABILITY SOUNDS IN NEGLIGENCE, STRICT LIABILITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY; AND WILL REMAIN IN EFFECT EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURSIDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF WARRANTIES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN THOSE JURISDICTION, THE PRECOR PARTIES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE PRECOR PARTIES’ AGGREGATE LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100 USD).
You agree to defend, indemnify and hold the Precor Parties harmless from and against any and all claims, damages, costs, and expenses, including attorneys’ fees, arising from or related to your use of the User Services and/or any content thereof.
You acknowledge and agree that Precor may suspend or terminate your access to and use of the User Services at any time, with or without cause, in Precor’s absolute discretion and without notice, including for any breach of the Terms. The relevant version of the Terms shall continue to apply to all prior use of the User Services. The following paragraphs of the Terms shall survive termination of your use or access to the User Services: paragraphs concerning indemnification, disclaimers, limitations of liability, termination and general provisions and any other provision that by its terms survives termination of your use of or access to the User Services.
Binding Arbitration and Class Action Waiver
This Section applies to any dispute EXCEPT THAT IT DOES NOT INCLUDE A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, PRECOR’s, OR EITHER OF OUR LICENSOR’S INTELLECTUAL PROPERTY RIGHTS. “Dispute” means any dispute, action, or other controversy between you and Precor concerning Preva, the User Services, this Agreement, or any product or service offered, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. "Dispute" will be given the broadest possible meaning allowable under law.
Notice of Dispute. In the event of a dispute, you or Precor must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute to our registered agent CT Corporation System, 505 Union Avenue SE, Suite 120, Olympia, WA 98501. Precor will send any Notice of Dispute to you to your address if we have it, or otherwise to your e-mail address. You and Precor will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or Precor may commence arbitration.
Small Claims Court. You may also litigate any dispute in small claims court in your county of residence or King County, Washington, if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
Binding Arbitration. IF YOU AND PRECOR DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION OR IN SMALL CLAIMS COURT, ANY OTHER EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Class Action Waiver. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR PRECOR WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
Arbitration Procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and in many cases its Supplementary Procedures for Consumer-Related Disputes. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent CT Corporation System, 505 Union Avenue SE, Suite 120, Olympia, WA 98501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, Precor will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
Claims or Disputes Must Be Filed Within One Year. To the extent permitted by law, any claim or dispute relating to Preva, the User Services, this Agreement, or any product or service offered must be filed within one year in small claims court (Section XVII.b.), an arbitration proceeding (Section XVII.c.). The one-year period begins when the event giving rise to the claim first arose or when the Notice of Dispute was filed, whichever occurs earlier. If a claim or dispute is not filed within one year, it is permanently barred.
Severability. If the class action waiver in Section XVII.d. is found to be illegal or unenforceable as to all or some parts of a dispute, then Section XVII will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of Section XVII is found to be illegal or unenforceable, that provision will be severed with the remainder of Section XVII remaining in full force and effect.
Interpreting the Contract. All parts of this Agreement apply to the maximum extent permitted by the relevant law; you may have greater rights in your jurisdiction of residence. If it is determined that we can’t enforce a part of this Agreement as written, we may replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Agreement won’t change. Section XVII.g. says what happens if parts of Section XVII (arbitration and class action waiver) are found to be illegal or unenforceable, and prevails over this Section XVIII.a. if inconsistent with it. Other terms may apply if you purchase products or services from other Precor websites.
Assignment. We may assign, transfer or otherwise dispose our rights and obligations under this Agreement, in whole or in part, at any time without notice to you. You may not assign this Agreement or transfer any rights under it.
No Third-Party Beneficiaries. This Agreement is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns.
No Waiver. Failure by Precor to enforce any provision(s) of this Agreement shall not be construed as a waiver of any provision or right.
Governing Law. The Federal Arbitration Act, applicable federal laws of the United States and the laws of the State of Washington will govern this User Agreement, without giving effect to any principals of conflict of laws. All claims and disputes arising out of this Agreement or the User Services, other than action for specific performance or injunctive relief brought by Precor, shall be exclusively brought in the federal, state, or local courts located in Seattle, Washington, USA and, with regard to such claims and disputes, you hereby irrevocably (i) submit to the exercise of personal jurisdiction over you by those courts and (ii) waive any jurisdictional, venue, or inconvenient forum objections to such courts.
Entire Agreement. This Agreement constitutes the entire agreement between you and Precor with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreement not specifically incorporated herein.
Last updated: January 21, 2016