AURATRACK APP – TERMS AND CONDITIONS
LATEST UPDATE TO THESE TERMS AND CONDITIONS: SEPTEMBER 19, 2022
ALC Enterprises Inc. owns and operates the application referred to and known as AuraTrack App (hereinafter referred to as the “App”). The present Terms and Conditions shall specify the terms upon which ALC Enterprises shall provide the App, rendering it available to users located in the United States and Canada. All users of the App shall comply with the present Terms and Conditions. Prior to using the App, users thereof shall acknowledge and agree to the present Terms and Conditions, in full. If any user of the App does not agree with these Terms and Conditions, the sole recourse available to such user shall be to not use the Application.
1. INTRODUCTION AND BACKGROUND
The App constitutes a platform operating in conjunction with a wearable band. Accordingly, the App displays and provides insight for metrics collected from such wearable band to track health information and readings regarding heart rate, oxygen saturation levels, sleep and certain fitness activities (collectively, the “Health Readings”). Health Readings generated by the App are based upon the information received from the relevant user and the wearable band.
In these Terms and Conditions, ALC Enterprises Inc., the company managing and operating the App and incorporated pursuant to the laws of the State of New York, shall hereinafter be referred to as “we”, “our”, “us” and other similar expressions.
The term “Services” shall refer to all services offered on our App, without limitation. The Services offered shall allow Users to obtain Health Readings relating to their heart rates, oxygen saturation, sleep and other fitness activities.
The latest version of these Terms and Conditions shall be referred to as the “Terms” or the “Terms and Conditions” and shall include amendments, and updates made to these Terms. For reference purposes, these Terms and Conditions shall specify the date of their latest update.
The term “Users” shall refer to all users of the App. The term “User” shall refer to any individual User of the App.
Users may send us questions, inquiries, and comments regarding these Terms and Conditions or the App by email. Please email email@example.com.
All usage of the App and the Services shall be governed by these Terms and Conditions. The present Terms and Conditions shall govern the terms upon which Users may use the App and benefit from the Services offered thereon. These Terms and Conditions shall apply to all Users who access the Services and the App upon which the Services are offered and provided.
The present Terms and Conditions shall be enforceable and binding upon the User’s access, visit or download of the App. By using the App, benefiting from the Services or otherwise engaging with the App in any way, the User agrees to be bound by these Terms and Conditions. Further, by using the App, the User confirms having read, understood, and agreed to be bound by these Terms and Conditions.
3. UPDATES TO THESE TERMS AND CONDITIONS
We reserve the right to amend or update these Terms and Conditions, in whole or in part, at any time at our sole discretion. The most recent version of these Terms and Conditions shall be published and available for review on the App. These Terms and Conditions shall specify the date of the latest revision thereof.
While we shall apply reasonable efforts to notify Users of changes to these Terms, we are unable to guarantee that Users shall be informed of updates to these Terms and Conditions prior to their publication on the App. As a result, all Users are encouraged to periodically review these Terms and Conditions to validate their compliance with the latest version of these Terms and Conditions.
All updates to these Terms and Conditions shall be binding as of their publication on the App. Any usage of the App pursuant to the publication of the revised Terms and Conditions shall constitute the User’s agreement to be bound by the revised Terms and Conditions.
4. REPRESENTATIONS AND WARRANTIES
To be eligible to use the App and the Services offered thereon, every User confirms as follows:
i. The User has reached the age of majority in its country of residence. The User holds the required authority and capacity to use the App and be bound by these Terms and Conditions.
ii. The User acknowledges that the content of the App and Health Readings provided are for personal and private use, only, and not for commercial purposes.
iii. The User is not subject to any restrictions that would prevent the User from using the App and/or the Services in the User’s country of residence.
iv. Upon accessing the App, the User agrees to release and discharge us and our third party service providers from any and all liability and claims that may arise out of the User’s usage of the App, as further specified in these Terms and Conditions.
5. LICENSE TO USE
We shall grant the User a non-exclusive, non-transferable, limited and non-sublicensable license to use, access and benefit from the App and the Services for personal use only, the whole in accordance with the terms set forth in these Terms (hereinafter referred to as the “License”).
The License granted in accordance with these Terms and Conditions shall not allow the User to:
1. Resell or commercialize any content on the App;
2. Use the App or the Services for commercial or business purposes;
3. Distribute, commercialize, sell, lease, transfer or otherwise share content from the App or any portion of the App, with a third party;
4. Make any edits, modifications, updates or changes to the App, whether in full or in part, or prepare any derivative work based upon the App, except with our prior written consent and approval;
5. Use the App or any portion thereof for any purpose not authorized by law or contemplated under these Terms and Conditions.
Any download, print, reproduction or copy of the App or its content shall be for limited personal use only. Users agree not to remove, obscure, or alter any notice of intellectual property rights present on or in the content of the App, the Services or any portion thereof.
Users acknowledge that any usage of the App that violates these Terms and Conditions shall give rise to the termination of the License granted, without notice or delay. Users further acknowledge that any unauthorized usage of the App may violate intellectual property laws and other applicable laws. In addition, we reserve the right to terminate the License granted at any time for convenience.
6. INTELLECTUAL PROPERTY
We own or have duly secured the required consents to the App, pages within the App, materials and content published on the App. Trademarks, logos, trade names, marks and intellectual property relating to us are proprietary to us. Our trademarks and logos may not be reproduced or shared without our explicit prior written consent. All intellectual property directly relating to the App and the Services is and shall remain our exclusive property.
Any content that has been licensed to us shall remain the property of its respective owners. Please note that any reproduction, transmission, sharing and distribution of the content on the App is expressly prohibited, except to the extent otherwise provided in these Terms and Conditions.
7. USER ACCOUNTS
To use the App and benefit from the Services, Users may be asked to create a user account on the App (hereinafter referred to as the “User Account”).
To create and register a User Account, the User shall comply with the registration process that shall be specified on the App, as applicable. The User may be asked to input personal information in the creation of the User Account, such as the User’s name, gender, height and weight, and date of birth, without limitation. Upon creating a User Account on the App, the User confirms that all information provided is true, complete and current. The User further confirms that it has not had a User Account on the App that was previously terminated or suspended in the past. Moreover, the User agrees not to transfer its User Account, or sell, lease, lend, or assign it to a third party.
The User agrees not to use a User Account that does not belong to such User. User Accounts may be secured by a password. In case of a security breach or compromised password, Users shall notify us at their earliest convenience by sending an email or otherwise communicating with us.
We disclaim all liability for losses or damages caused by the unauthorized usage of a User Account. Users shall be held liable for any purchases and charges incurred by or using their User Accounts. Further, we are unable to guarantee that User Accounts on the App shall be fully secure and protected from unauthorized access. Consequently, the User shall assume all risks associated with omissions or actions on or using its User Account as well as the User’s provision of personal information.
Users may delete their User Accounts by following the instructions to this effect provided on the App. We reserve the right to suspend any User Account for which we have reason to believe is being accessed by multiple individuals or entities. The determination shall be made by us, without liability, based upon available information.
Further, we may revoke or terminate a User’s Account on the App if the User has acted in a way that is contrary to these Terms and Conditions. Users waive any rights or recourses they had, have or may have against us in case of the suspension or termination of their User Accounts.
8. USER CONDUCT
Users shall be responsible for all conduct, actions and omissions relating to their usage of the App and the Services. Users therefore agree to not engage in unacceptable use of the App, which shall refer to using the App to:
• Breach any international, regional, state or provincial, or local laws, government orders, regulations or policies;
• Impair, interfere with or damage the App, or any portion thereof;
• Send, distribute, disseminate or otherwise transmit harmful components, viruses or damaging files;
• Engage in unlawful, fraudulent, malicious or otherwise illegal conduct, or encourage others to use the App for such illicit purposes;
• Intimidate, harass, threaten or otherwise cyberstalk Users of the App;
• Publish, post, transmit, distribute or otherwise declare known false or illicit statements or remarks;
• Impersonate an individual, celebrity, entity, business, or company, or intentionally mislead others about the User’s identity;
• Collect personal information or data regarding Users of the App, without obtaining the Users’ consent;
• Upload, share, distribute, publish, transmit or otherwise provide content or information that violates a third party’s intellectual property rights;
• Share, transmit, distribute or otherwise disperse spam, advertisements or unsolicited material, such as ads;
• Act in a manner that conflicts with the spirit of these Terms and Conditions.
Users acknowledge that there are a number of obligations applicable to the usage of the App, and the receipt of the Services. Users further agree to comply with Internet safety guidelines and standards.
Users may be held personally responsible for their failure to comply with these Terms and Conditions, and our guidelines and standards. Further, Users agree that we may, without liability and without penalty, revoke a User’s right to use the App if the User breaches or attempts to breach any obligation contained in these Terms and Conditions.
9. THIRD PARTY LINKS
The User acknowledges that unless otherwise explicitly stated, we are not affiliated with any third party applications linked or otherwise referenced on our App. We do not endorse any of the third party applications, unless otherwise explicitly stipulated. The links to third party applications are provided solely for convenience and reference purposes. The User’s usage of the links on the App shall be at the User’s sole risk.
Being unaffiliated and unrelated to the third party applications, we cannot provide any warranties or guarantees with the respect to the same. Any issues arising out of the third party applications shall be resolved exclusively between the User and the relevant third party application. We shall not be a party to any litigation, dispute or controversy arising out of a User’s usage of the links to the third party applications on the App.
The User understands that the inclusion of any links on the App shall not imply our endorsement or any association with such third party applications.
10. PRIVACY AND PERSONAL INFORMATION
11. DISCLAIMERS AND LIMITED WARRANTIES
The App and the Services shall be provided on an “as is” basis and “as available”, without any warranties or guarantees of any kind. Without limiting the generality of the foregoing, we do not guarantee that the App shall be accessible and available at all times for usage without error, omissions or interruption.
We implemented measures and processes to ensure the App remains available and accessible. Despite such measures and processes, we are unable to guarantee that the App shall be available on a continuous basis without interruption. Certain factors beyond our reasonable control may affect the App’s operations and availability. In consideration thereof, Users acknowledge that we shall not be responsible for any interruptions of service or issues affecting the App.
The App and its features shall be provided without warranties of any kind, including warranties that are express, statutory or implied. As such, we shall not provide any of the following implied warranties with respect to the App and the Services: implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are denied.
12. LIABILITY, DAMAGES AND RELEASE
Users recognize that technical issues may arise when using the App. Such issues may delay, suspend, terminate, freeze or completely prevent access to the App. We shall not be liable for any loss, damage or harm caused by the App or its Services. Further, we disclaim full liability for any issue affecting our servers, including unauthorized access to information and data, and any service interruptions or other issues affecting the App.
We shall apply reasonable efforts to correct issued or defects affecting the App but we do not guarantee that issues or defects shall be corrected in a timely manner or corrected at all. Considering the risks associated with online activity, we cannot guarantee that the App shall be free of harmful components, such as viruses. In consideration thereof, each User agrees that its usage of the App and the Services shall be at the User’s sole risk and expense.
Users of the App therefore agree to release, waive, discharge, and hold us, our affiliates, subsidiaries, shareholders, directors and employees harmless from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of or related to any loss, damage, or injury, dispute with a third party or other claim that may be caused, sustained or otherwise worsened while using the App, the Services or due to use or misuse of the App and/or the Services.
To the fullest extent permitted by law, we exclude our liability for any losses and damages arising out of or in connection with the App and the Services, including but not limited to direct, general, punitive, and incidental damages. This exclusion of liability shall apply regardless of whether such liability is based on contract, tort, strict liability or another theory of law. Further, this exclusion shall apply even if we were aware of the possibility of such damages.
Moreover, we shall not be liable for any indirect, special or consequential loss or damages arising from the User’s access and/or usage of the App and the Services, including but not limited to lost profits, lost revenue, lost business or anticipated earnings, and loss of goodwill.
The User agrees to indemnify and hold us, our affiliates, subsidiaries, shareholders, directors and employees harmless from and against all losses, damages, liabilities, costs and expenses in connection with any claims, actions, charges, damages, or suits brought by a third party, arising out of (i) the User’s usage of the App or the Services; (ii) the User’s gross negligence or intentionally wrongful act(s), (iii) the User’s violation or breach of any obligation under these Terms and Conditions; (iv) any false or incorrect representation or warranty made by the User; or and/or (v) the User’s execution or non-performance of its obligations under these Terms and Conditions.
14. APPLICABLE LAWS
These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of New York (excluding any conflict of laws rule or principle, which may refer such interpretation to the laws of another jurisdiction). These Terms and Conditions shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
15. ARBITRATION PROCESS
Any disputes or claims arising out of these Terms and Conditions (excluding any claims we have for injunctive or other equitable relief) shall be resolved by binding arbitration under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect, unless the User has opted out of the arbitration process by sending us a written request to this effect upon downloading the App. Such opting out request may not be sent following the institution of arbitration proceedings or following the commencement of a dispute or claim, as applicable.
All arbitration must be brought in the parties’ individual capacity, and not as a plaintiff or class member, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. All Users waive their right to a jury trial in any arbitration proceedings commenced in connection with these Terms and Conditions, the App and the Services.
The award rendered by the arbitrator shall include costs of arbitration, and costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights, or other rights.
Any claim or Dispute relating to these Terms and Conditions, the App or the Services shall be introduced within one (1) year of the event giving rise to the claim. Any claim introduced after the one (1) year mark shall be barred.
16. MISCELLANEOUS PROVISIONS
Entire Agreement: These Terms and Conditions, together with other policies referenced herein, constitute the entire agreement between us and the User and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written.
Severability: In the event that any provision or section in these Terms and Conditions is held to be unenforceable or unlawful, the provision or section shall be severed from these Terms and Conditions. The provision or section may be redrafted to preserve the original intention to the extent permitted by law. Any severed or redrafted provision or section shall not affect the enforceability of the remaining provisions of these Terms and Conditions.
Force Majeure: Notwithstanding anything to the contrary contained in these Terms and Conditions, if we are delayed, hindered in or prevented from the performance of any term or act required under these Terms by reason of acts of God, strikes, lockouts, governmental acts or regulations, or any natural disaster, the performance of such obligation or act shall be excused for the duration of the Force Majeure event. We shall resume the performance of such obligation or act within a reasonable timeframe following the expiration or termination of the Force Majeure event.
Assignment: We may assign all or part of our rights and obligations under these Terms and Conditions to any person, entity or company, without restriction. The User may not assign all or part of its rights and obligations under these Terms and Conditions to any person, without our prior written consent. Any assignment in violation of the foregoing shall be void.
Waivers: No waiver or delay in executing any of the rights or obligations in these Terms and Conditions shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
17. MEDICAL DISCLAIMER
The User acknowledges and understands that the Health Readings provided by or in connection with the App shall be based, at least in part, on information obtained from the User’s wearable band. As such, we shall not be liable for any incorrect, inaccurate or otherwise false Health Readings.
The User further acknowledges that the Health Readings received should not be construed as medical advice or medical recommendations. Information or Health Readings provided by or in connection with the App should not be used to diagnose, treat, examine or medically advise Users.