Last Updated: April 27, 2020
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. NIMBL, Inc. (together with our affiliates, “NIMBL”, “we”, or “us”) provides an online fitness and wellness community and related products, services, content and features through NIMBL websites, such as those for our ondemand classes, support, and local country pages (the “NIMBL Site(s)”), and through mobile, desktop, or device applications (including iOS and Android applications (“Apps”)) and NIMBL-controlled social media pages (including on Facebook, Instagram, LinkedIN and Twitter). To make these Terms easier to read, the NIMBL Sites and Apps, along with the NIMBL On-demand interfaces and NIMBL-controlled social media pages are collectively called the “NIMBL Service” or “the Services”. By registering as a member or by visiting, browsing, or using the NIMBL Service in any way, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and NIMBL.
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 20 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND NIMBL WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
If you do not wish to be bound by these Terms, you may not access or use the NIMBL Service. Certain elements of the NIMBL Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the NIMBL Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
1. Who May Use the NIMBL Service
Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to register with and use the NIMBL Service. However, minors that can safely use NIMBL equipment may participate in live or on-demand in classes, provided that (a) they and their parent/guardian have signed a NIMBL waiver and release; (b) they are at least 14 years old and (c) their parent/guardian is supervising them at all times.
We may, in our sole discretion, refuse to offer the NIMBL Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the NIMBL Service is revoked where these Terms or use of the NIMBL Service is prohibited or conflicts with any applicable law, rule or regulation. Further, the NIMBL Service is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.
2. License to Use the NIMBL Service
License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the NIMBL Service, NIMBL grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the NIMBL Service for your own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Content (defined below) available on the NIMBL Service and the right to download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices. This license grant is subject to you agreeing to and abiding by the NIMBL intellectual property, which forms a part of these Terms. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or NIMBL.
Restrictions. Except as expressly permitted in writing by an authorized representative of NIMBL, you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the NIMBL Service, nor will you take any measures to interfere with or damage the NIMBL Service. Unless otherwise specified, copying or modifying any Content or using Content for any purpose other than your personal, non-commercial use of the NIMBL Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by NIMBL in these Terms are reserved.
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
4. Membership Requirements Registration
To enjoy full access to the NIMBL Service, you must register as a member of the NIMBL Service and enter into a subscription agreement for access to our on-demand classes, Content and features (a “Subscription”). Your Subscription is also governed by the Membership Terms. You must provide complete and accurate registration information to NIMBL, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.
Classes and Membership. You must have an account registered on our website in order to sign up for classes and/or purchase subscription,. Additional information about our class and memberships is available on our website.
Profile Information and Picture. You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in NIMBL’s sole discretion).
Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the NIMBL Service. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.
5. Membership Structure and Fees
NIMBL will provide information on its then-current Subscription requirements on the NIMBL Site and/or by other means through the NIMBL Service. Features and prices are subject to change.
6. Sale of Products
NIMBL accepts orders for the NIMBL percussion gun(s), and any other equipment, apparel or accessories that we may offer through the NIMBL Site or at authorized NIMBL retail or online partner locations. Unfortunately, availability of products cannot be guaranteed. Please note that product, service and other information provided is subject to corrections and changes without notice. Graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
Unless otherwise specified at the time of purchase, you must pay for products when you place the order. All products ordered will be delivered to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the NIMBL Site or to your email address after your payment has been processed. Please see our Warranty and Return policy located on www.joinnimbl.com for further information about NIMBL products.
7. Termination; Account Deletion
Term. These Terms begin on the date you first use the NIMBL Service and continue as long as you have an account with us and/or continue to use the NIMBL Service.
Termination. NIMBL may, in NIMBL’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if NIMBL determines that you have violated these Terms or that your conduct or User Content would tend to damage NIMBL’s reputation or goodwill. If NIMBL deletes your account, you may not re-register for or use the NIMBL Service under any other user name or profile. NIMBL may block your access to the NIMBL Service to prevent re-registration.
Effect of Termination / Account Deletion. Upon termination of these Terms all licenses granted by NIMBL will terminate. The following sections survive termination: Privacy (Section 3), User Content (Section 8), Indemnification (Section 12), No Warranties (Section 15), Limitation of Liability (Section 16), Safety Warnings (Section 17), Intellectual Property (Section 18), Arbitration Requirement & Class Action Waiver (Section 20), Contracting Entities, Governing Law and Jurisdiction (Section 21), and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and NIMBL is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all live and on-demand classes and any other Content or features provided through the NIMBL Service. NIMBL, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.
8. User Content
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the NIMBL Service; and (ii) ”User Content” means any content that users (including you) provide to be made available through the NIMBL Service. Content includes, without limitation, User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the NIMBL Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the NIMBL Service.
As between you and NIMBL, you represent that you own (or have all rights necessary to grant NIMBL the rights below to) all User Content that you submit to the NIMBL Service, and that NIMBL will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant NIMBL a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the NIMBL Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to NIMBL or through the NIMBL Service about improving or adding new features or products to the NIMBL Service or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to NIMBL a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the NIMBL Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
9. Rights and Terms for Apps
Rights in App Granted. Subject to your compliance with these Terms, NIMBL grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. NIMBL reserves all rights in and to the App not expressly granted to you under these Terms.
Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are between you and NIMBL, and not with the App Provider, and NIMBL (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of NIMBL.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, NIMBL will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
- You must also comply with all applicable third party terms of service when using the App.
10. General Prohibitions and NIMBL’s Enforcement Rights
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;
- Download and/or install any third party software and/or application on any NIMBL hardware (excluding assistive technologies that are necessary for your own use of the NIMBL Service, such as screen-readers) that is not expressly permitted by NIMBL in writing;
- Use, display, mirror or frame the NIMBL Service or any individual element within the NIMBL Service, NIMBL’s name, any NIMBL trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without NIMBL’s express written consent;
- Access, tamper with, or use non-public areas of the NIMBL Service, NIMBL’s computer systems, or the technical delivery systems of NIMBL’s providers;
- Attempt to probe, scan or test the vulnerability of any NIMBL system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by NIMBL or any of NIMBL’s providers or any other third party (including another user) to protect the NIMBL Service or Content;
- Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the NIMBL Service;
- Attempt to access, scrape or search the NIMBL Service or Content or download Content from the NIMBL Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by NIMBL or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a NIMBL trademark, logo URL or product name without NIMBL’s express written consent;
- Use the NIMBL Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by NIMBL;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the NIMBL Service or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the NIMBL Service or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the NIMBL Service;
- Collect or store any personally identifiable information from the NIMBL Service from other users of the NIMBL Service without their express permission;
- Copy, use, index, disclose or distribute any information or data obtained from the NIMBL Service, whether directly or through third parties (such as search engines), without NIMBL’s express written consent;
- Alter, replicate, store, distribute or create derivatives from the Content available via the NIMBL Service except as expressly permitted in writing by NIMBL;
- Impersonate or misrepresent your affiliation with any person or entity;
- Access, use or exploit the NIMBL Service in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with NIMBL or the NIMBL Service;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the NIMBL Service or Content or to review or edit any Content, we have the right to do so for the purpose of operating the NIMBL Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the NIMBL Service and NIMBL’s systems. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the NIMBL Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
11. Member Interactions, Dealings with Third Parties
When interacting with other NIMBL members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the NIMBL Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that NIMBL is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.
You agree to indemnify, defend, and hold harmless NIMBL and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to (i) your activities on the NIMBL Service, (ii) any User Content submitted by or on behalf of you or (iii) your violation of these Terms.
13. Third Party Software and Applications
Downloading and/or installing any third party software and/or applications that are not expressly authorized by NIMBL on any NIMBL hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by NIMBL.
14. Third Party Links and Content
There may be links on the NIMBL Service that let you leave the particular NIMBL Service you are accessing in order to access a linked site that is operated by a third party. NIMBL neither controls nor endorses these sites, nor has NIMBL reviewed or approved the content that appears on them. NIMBL is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that NIMBL is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.
15. No Warranties
NIMBL reserves the right to modify the NIMBL Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the NIMBL Service, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the NIMBL Service. NIMBL has no obligation to screen or monitor any Content and does not guarantee that any Content available on the NIMBL Service is suitable for all users or that it will continue to be available for any length of time.
NIMBL provides the NIMBL Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the NIMBL Service at your own risk. Other than as expressly provided in writing by NIMBL in connection with your purchase of a NIMBL product, to the extent permitted by law, NIMBL expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, NIMBL makes no representations or warranties:
- That the NIMBL Service is or will be permitted in your jurisdiction;
- That the NIMBL Service will be uninterrupted or error-free;
- Concerning any Content, including User Content;
- Concerning any third party’s use of User Content that you submit;
- That the NIMBL Service will meet your personal or professional needs;
- That NIMBL will continue to support any particular feature of the NIMBL Service; or
- Concerning sites and resources outside of the NIMBL Service, even if linked to from the NIMBL Service.
To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE NIMBL SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
16. Limitation of Liability
To the fullest extent permitted by law: (i) NIMBL shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the NIMBL Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and (ii) NIMBL’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to NIMBL over the 12 months preceding the date your first claim(s) arose. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of NIMBL’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between NIMBL and you.
17. Safety Warnings
THE NIMBL SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE NIMBL SITE OR HEARD ON THE NIMBL SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE NIMBL SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.
NOTHING STATED OR POSTED ON THE NIMBL SITE OR AVAILABLE THROUGH ANY NIMBL SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE NIMBL SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, NIMBL MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE NIMBL SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of NIMBL with the intent of using the NIMBL Service, you affirm that either (A) all of the following statements are true: (i) no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician or general practitioner has been specifically consulted by you and approved of your use of the NIMBL Service.
If applicable, you further affirm that (a) you are not pregnant, breastfeeding or lactating; unless (b) your physician or general practitioner has been specifically consulted and approved your use of the NIMBL Service.
NIMBL reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
18. Intellectual Property Acknowledgment
You acknowledge and agree that your use of the NIMBL Services and any Content contained therein is dependent upon you agreeing to and abiding by the NIMBL Intellectual Property and DMCA Policy at all times. You further acknowledge that the NIMBL Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All NIMBL-generated content, and content provided to NIMBL by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and NIMBL, NIMBL own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the NIMBL Service.
19. Intellectual Property Usage and Reporting Infringement
NIMBL respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party’s right or other intellectual property rights. If you believe that the NIMBL Service or any Content contains elements that infringe or misappropriate your copyrights or other intellectual property rights (or the intellectual property rights of others), please go to the NIMBL Intellectual Property and DMCA Policy for directions on how to report it to us.
20. ARBITRATION REQUIREMENT & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.
- Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and NIMBL agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the NIMBL entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and NIMBL are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
- Exceptions and Opt-out. As limited exceptions to Section 20(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of NIMBL’s Legal Department at the NIMBL address set out in Section 24 below within 30 days following the date you first agree to these Terms.
- Initial Dispute Resolution and Notification. You agree that before initiating any Dispute or arbitration proceeding, we will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of NIMBL’s Legal Department at the NIMBL address set out in Section 24 below. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If we are unable to resolve the Dispute within 45 days after NIMBL’s receipt of the Notice, then you or NIMBL may initiate arbitration proceedings as set out below.
Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at www.jamsadr.com or by calling 1-800-352-5267. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at www.jamsadr.com. JAMS will appoint an arbitrator that is either (1) a retired federal or state court judge, or (2) an attorney who has been licensed to practice law in the state of New York for at least 10 years. The arbitration will be conducted by an in-person hearing, unless we both agree otherwise. If JAMS fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint a different arbitration administrator.
Any arbitration hearings will take place in the county (or other municipality) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. During the arbitration, both you and NIMBL may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If you assert a claim against NIMBL, you will be responsible for paying a $250 consumer filing fee. NIMBL will pay for all other filing, administration and arbitrator fees and expenses. If your Dispute is for less than U.S. $10,000 (including attorneys’ fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, NIMBL will reimburse your initial filing fee. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Class Action Waiver. YOU AND NIMBL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, neither JAMS nor the arbitrator may not consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.
- Effect of Changes on Arbitration. Notwithstanding the provisions of Section 25 “Modification”, if NIMBL changes any of the terms of this Section 20 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of NIMBL’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and NIMBL in accordance with the terms of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- Severability. With the exception of any of the provisions in Section 20(e) above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
21. Contracting Entities, Governing Law and Jurisdiction
If your contract for the NIMBL Service is with NIMBL, Inc., these Terms shall be governed by the laws of the State of New York, United States of America, without regard to principles of conflicts of law. If your contract for the NIMBL Service is with another NIMBL entity, these terms shall be governed by the laws of the jurisdiction under which that NIMBL entity is incorporated, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Subject to the agreements in Section 20 above, (i) if your contract for the NIMBL Service is with NIMBL, Inc., exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the state and federal courts located in New York, New York, United States of America, and you consent to the jurisdiction of those courts, and (ii) if your contract for the NIMBL Service is with another NIMBL entity, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the courts located in the jurisdiction under which that NIMBL entity is incorporated, and you consent to the jurisdiction of those courts.
22. Interpretation; Severability; Waiver; Remedies
Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by NIMBL in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of NIMBL. NIMBL’s rights and remedies hereunder are cumulative and not exclusive.
23. Successors; Assignment; No Third Party Beneficiaries
These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without NIMBL’s prior written consent. NIMBL may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from NIMBL electronically. NIMBL may communicate by email or by posting to the NIMBL Service. For support-related inquiries, you may email Support. For all other notices to NIMBL, write to the following addresses:
U.S. and Canadian Residents:
6 Partridge Run
Holmdel NJ 07733
Attn: Legal Department
Nothing in these Terms or otherwise limits NIMBL’s right to object to subpoenas, claims, or other demands.
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the NIMBL Site and/or through the NIMBL Service. Modifications will be effective on the date that they are posted to the NIMBL Site. It’s important that you review the Terms whenever we update them before you use the NIMBL Service. If you continue to use the NIMBL Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 20(f) “Effect of Changes on Arbitration,” you may not use the NIMBL Service anymore. Because the NIMBL Service is evolving over time we may change or discontinue all or any part of the NIMBL Service, at any time and without notice, at our sole discretion.
26. Entire Agreement
These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the NIMBL Site from time to time:
In the event of a conflict between any policies posted on the NIMBL Service and these Terms, these Terms will control. These Terms represents the entire understanding between NIMBL and you regarding the NIMBL Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
27. Force Majeure
Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.