POPiN TERMS OF SERVICE

USER TERMS AND CONDITIONS

THE FOLLOWING TERMS AND CONDITIONS AFFECT YOUR LEGAL RIGHTS.  BY ACCESSING, VIEWING OR MAKING A PURCHASE THROUGH THIS APPLICATION, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS (“TERMS OF USE”). POPIN AND/OR ITS AFFILIATES (COLLECTIVELY “POPIN”) EXPRESSLY RESERVES THE RIGHT TO MODIFY THESE TERMS OF USE AT ANY TIME AND WITHOUT PRIOR NOTICE.  YOU ARE SOLELY RESPONSIBLE FOR REVIEWING THESE TERMS OF USE PRIOR TO ACCESSING THE APPLICATION.  YOUR CONTINUED USE OF THIS APPLICATION CONSITUTES YOUR ACCEPTANCE OF THESE TERMS OF USE, UPDATES AND MODIFICATIONS THEREOF.  IF YOU DO NOT AGREE WITH THESE TERMS OF USE, UPDATES AND MODIFICATIONS THEREOF, YOU MUST IMMEDIATELY CEASE USE OF THIS APPLICATION.

Use of the Services to enter or use a facility or attend an athletic class may be subject to additional terms and conditions of the person, persons, gym, health club, fitness center, sports center, athletic club or other athletic-related facility (collectively “Gym”).  You specifically consent to be bound by the Gym’s terms of use.  You are solely responsible for inquiring about and reviewing the Gym’s terms of use prior to entering or using a gym facility or attending a class.

If there is a conflict between the Terms of Use and Gym’s terms of use, these Terms of Use shall control but where both documents are read to be congruent with one another as much as possible.

Services

POPiN is providing you access to a marketplace of Gyms.  These Gyms offer access and use to their facilities or classes or both for a fee.  POPiN’s mobile applications, website and related services (collectively “Services”) enable users to locate and access Gyms.

POPiN does not own or operate any Gym.   Access to a Gym are offerred by the Gym and are subject to the terms and condition of the Gym.  POPiN does not guarantee any access, availability or use of any facility or class.

User Representations and Conduct

To use Services, you must register for and maintain an active personal user account and must be at least 18 years of age, or the age of legal majority in your jurisdiction.  Account registration requires you to submit to POPiN certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by POPiN. You agree to maintain accurate, complete, and up-to-date information in your user account. Your failure to maintain accurate, complete, and up-to-date account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your account, and you agree to maintain the security and secrecy of your account username and password at all times. 

Only you are authorized to use your account and may not authorize another person or any entity to use your account.  You cannot assign or otherwise transfer your Account to any other person or entity.  You will comply with all applicable laws when accessing or using the Services.  While using Services and Gym accessed through Services, you will abide by all code of conduct imposed by the Gym and not cause any nuisance, annoyance, inconvenience, harm, threat, deception, harassment, discrimination, violation of anyone’s right of privacy, publicity or other right of the Gym or any other party.  Accessing a Gym without validating check-in through the Application may be considered trespass of the Gym and may be subject to removal from the premises and lead to possible legal consequences at the discretion of the Gym.  You may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.

Payment

You understand that accessing Gym through Services will result in charges to you for admission to the Gym, use of facilities, attendance of classes or other services and products used by you ("Charges"). POPiN will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law.

All charges and payments will be enabled by POPiN using the preferred payment method designated in your account. Email receipts are provided by POPiN as a courtesy; if there is no valid email address within the user's POPiN account, email receipts are unable to be provided to the user. Users can review their POPiN transactions at any time in the "Workout History" section of their app profile.If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that POPiN may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by POPiN.

As between you and Gym and between you and POPiN, POPiN reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in POPiN's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand.  POPiN will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. POPiN may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on Gym’s behalf. POPiN may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Gyms or other third parties.

In certain cases, with respect to Gyms, Charges you incur will be owed directly to Gyms, and POPiN will collect payment of those charges from you, on the Gym’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Gym. In such cases, you retain the right to request lower Charges from a Gym for services or goods received by you from such Gym at the time you receive such services or goods, and charges you incur will be owed to the Gym. POPiN will respond accordingly to any request from a Gym to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Gym, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to POPiN or its affiliates, where POPiN is solely liable for any obligations to Gyms. In such cases, you retain the right to request lower Charges from POPiN for services or goods received by you from a Gym at the time you receive such services or goods, and POPiN will respond accordingly to any request from you to modify the Charges for a particular service or good.

Network Access

Access to the Services are done through your mobile phone or device.  You are responsible for obtaining the data network access necessary to use the Services.  Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto.  POPiN does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. 

Privacy

POPiN collects and uses personal information in connection with Services as described in its Privacy Policy.  You agree you have reviewed and specifically consented to POPiN’s Privacy Policy and any changes thereof as detailed within this Application or on POPiN’s website.

Communication from POPiN

You agree POPiN may contact you by telephone, email or text messages (including by an automatic system) at any of the email addresses and phone numbers provided by you.  Although the main purpose of these communications is for customer service reasons, it may be for marketing purposes.

Arbitration Agreement

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against POPiN on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against POPiN, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against POPiN by someone else.

You and POPiN agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and POPiN, and not in a court of law.

You acknowledge and agree that you and POPiN are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and POPiN otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and POPiN each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Indemnification

You agree to indemnify and hold POPiN and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) POPiN's use of your User Content; or (iv) your violation of the rights of any third party, including Gyms.

DISCLAIMER OF WARRANTY; RELEASE

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR AS EXPRESSLY SET FORTH IN THESE TERMS OF USE, POPIN AND ITS AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSS OF DATA THAT MAY RESULT FROM THE USE OF THE SERVICES. FURTHER, POPIN AND ITS AFFILIATES DISCLAIM ANY WARRANTY THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. POPIN AND ITS AFFILIATES DO NOT GUARANTEE THE ACCURACY OF CONTENT ON THE SERVICES, AND WILL NOT ASSUME ANY LIABILITY FOR: (1) USERS’ PURCHASE DECISIONS (AND THE SUBSEQUENT USE OF PURCHASED PRODUCTS AND SERVICES) OR (2) THIRD PARTY CONTENT, ACTIONS OR INACTIONS, OR YOUR INTERACTIONS WITH ANY THIRD PARTIES IN CONNECTION WITH THE SERVICES.  POPIN DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF GYMS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

IN CONNECTION WITH YOUR USE OF THE SERVICES, YOU RELEASE POPIN AND ITS AFFILIATES (AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. BY ENTERING INTO THESE TERMS OF USE YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” IN ADDITION, YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ANY PROTECTION THAT MAY EXIST UNDER ANY COMPARABLE OR SIMILAR STATUTES OR PRINCIPLES OF LAW APPLICABLE IN JURISDICTIONS OTHER THAN CALIFORNIA AS IT PERTAINS TO THE ENFORCEMENT OF THE RELEASE IN THIS SECTION.

TO THE EXTENT PERMITTED BY LAW, POPIN’S LIABILITY UNDER ANY WARRANTY THAT CANNOT LEGALLY BE EXCLUDED IS LIMITED IN ACCORDANCE WITH THESE TERMS OF USE.

LIMITATION OF LIABILITY AND DAMAGES

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND POPIN AND ITS AFFILIATES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) IN NO EVENT SHALL POPIN OR ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, STATUTORY, PUNITIVE, RELIANCE OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY UNDER THESE TERMS OF USE OR IN ANY WAY RELATING TO THE SERVICES, WHETHER OR NOT YOU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALL STATUTORY OR IMPLIED CONDITIONS AND WARRANTIES ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW; AND (B) POPIN AND ITS AFFILIATES’ AGGREGATE LIABILITY IS LIMITED TO AMOUNTS PAID OR PAYABLE TO POPIN BY YOU UNDER THIS TERMS OF USE IN THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE LIMITATION OF LIABILITY IN THE IMMEDIATELY PRECEDING SENTENCE IS NOT ENFORCEABLE, POPIN AND ITS AFFILIATES’ AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO $50.00. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CLAIMS AND CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS OR CAUSES OF ACTION (TO THE EXTENT PERMITTED BY LAW).

Electronic Signatures

You acknowledge and agree that by clicking on any button within the Services labeled as an action to purchase, confirm, order, agree or similar label with legal consequences or scanning your mobile device or phone at a POPiN check-in system at a Gym (collectively “Legal Actions”) constitutes your acceptance of these Terms by electronic signature and are entering into a legally binding contract. You acknowledge and agree that your Legal Actions are your electronic signature under New York’s Electronic Signatures and Records Act, the federal Electronic Signatures in Global and National Commerce Act, and under other state electronic signature laws modeled after or similar to the Uniform Electronic Transactions Act. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

Violation of Terms of Use

Violation of these Terms of Use is grounds to terminate your account, refuse you access to Services, and other punishment deemed appropriate by POPiN.  Violation of these Terms of Use is determined solely at the discretion of POPiN.

General

A waiver by POPiN of any right or benefit provided in these Terms of Use does not infer or permit a further waiver of that right or benefit, nor does it infer or permit a waiver of any other right or benefit provided in these Terms of Use.

All of the rights, remedies and benefits provided in these Terms of Use will be cumulative and will not be exclusive of any other such rights, remedies and benefits allowed by law or equity.

The services hereunder are offered by POPiN, Inc., located at: 16 East 40th Street, Suite 802, New York, NY 10016 and email: info@popin.nyc.

 

Last updated: July 17th, 2017

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