App Terms Of Use

ENGLISH

IMPORTANT: BY USING YOUR NEX BAND, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS:

1. Nex Band SOFTWARE LICENSE AGREEMENT
2. NOTICES FROM MIGHTY CAST

MIGHTY CAST INC.

Nex Band SOFTWARE LICENSE AGREEMENT Single Use License
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR NEX BAND OR DOWNLOADING THE SOFTWARE UPDATE ACCOMPANYING THIS LICENSE. BY USING YOUR NEX BAND OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE NEX BAND OR DOWNLOAD THE SOFTWARE UPDATE.
IF YOU HAVE RECENTLY PURCHASED AN NEX BAND AND YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE NEX BAND WITHIN THE RETURN PERIOD TO MIGHTY CAST OR AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO MIGHTY CAST’S RETURN POLICY.

1. General.

(a) The software (including embedded software and third party software), documentation, interfaces, content, fonts and any data that came with your Nex Band (“Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by Mighty Cast (“Software Updates”), whether in read only memory, on any other media or in any other form (the Original Software and Software Updates are collectively referred to as “Software”) are licensed, not sold, to you by Mighty Cast Inc. (“Mighty Cast”) for use only under the terms of this License. Mighty Cast and its licensors retain ownership of the Software itself and reserve all rights not expressly granted to you. You agree that the terms of this License will apply to any Mighty Cast-branded app that may be pre-installed on your Nex Band, unless such app is accompanied by a separate license, in which case you agree that the terms of that license will govern your use of that app.
(b) Mighty Cast, at its discretion, may make available future Software Updates for your Mighty Cast Nex Band. The Software Updates, if any, may not necessarily include all existing software features or new features that Mighty Cast releases for newer or other models of the Nex Band. The terms of this License will govern any Software Updates provided by Mighty Cast that replace and/or supplement the Original Software product, unless such Software Update is accompanied by a separate license in which case the terms of that license will govern.

2. Permitted License Uses and Restrictions.

(a) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to use the Software on a single Nex Band. Except as permitted in Section 2(b) below, and except as provided in a separate agreement between you and Mighty Cast, this License does not allow the Software to exist on more than one Nex Band at a time, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Mighty Cast proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with Nex Band. Some of those rights are available under separate licenses from Mighty Cast. For more information on developing third party devices, applications, and accessories for the Nex Band, please contact us at info@thenexband.com.
(b) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download Software Updates that may be made available by Mighty Cast for your model of the Nex Band to update or restore the software on any such Nex Band that you own or control. This License does not allow you to update or restore any Nex Band that you do not control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.
(c) You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provided by the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Software).
(d) The Software may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. Title and intellectual property rights in and to any content displayed by, stored on or accessed through your Nex Band belong to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. Except as otherwise provided herein, this License does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you.
(e) You agree to use the Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Software and Services. Features of the Software and the Services may not be available in all languages or regions, some features may vary by region, and some may be restricted or unavailable from your service provider. A Bluetooth connection to a supported iOS device (“Paired iOS Device”) with Wi-Fi or cellular data connection is required for some features of the Software and Services.
(g) Using the Nex Band in some circumstances can distract you and may cause a dangerous situation (for example, avoid using while driving a car or using headphones while riding a bicycle). By using the Nex Band you agree that you are responsible for observing rules that prohibit or restrict the use of mobile phones or headphones (for example, the requirement to use hands-free options for making calls when driving).
(h) The Nex Band and its data and included Nex Band apps are not medical devices and are intended for fitness purposes only. They are not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease.
(i) Before starting or modifying any exercise program using the Nex Band, consult your physician. Be careful and attentive while exercising. Stop exercising immediately if you feel pain, or feel faint, dizzy, exhausted, or short of breath. By exercising, you assume inherent risks including any injury that may result from such activity. If you have any medical condition that you believe could be affected by the Nex Band (for example, seizures, blackouts, eyestrain, or headaches), consult with your physician prior to using the Nex Band.

3. Transfer.

You may not rent, lease, lend, sell, redistribute, or sublicense the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another party in connection with the transfer of ownership of your Nex Band , provided that: (a) the transfer must include your Nex Band and all of the Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Software reads and agrees to accept the terms and conditions of this License.

4. Consent to Use of Data.

Software features may require information from your Nex Band to provide their respective functions. At all times your information will be treated in accordance with Mighty Cast’s Privacy Policy which can be found at the Nex Band website.

5. Services and Third Party Materials.

(a) The Software may enable access to Mighty Cast and third party services and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services requires Internet access and use of certain Services may require you to accept additional terms and may be subject to additional fees. By using this software in connection with Mighty Cast Services, you agree to the applicable terms of service for that Service.
(b) Maps. The maps service and features of the Software (“Maps”), including map data coverage, may vary by region. When you use any location-based features within Maps, various location-related and usage information may be sent to Mighty Cast, including the real-time geographic location of your Nex Band, in order to process your request and help improve Maps. Such location and usage data is collected by Mighty Cast in a form that does not personally identify you. By using Maps, you agree and consent to Mighty Cast’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of this information, to provide and improve the Maps features and service, and other Mighty Cast products and services. You may disable the location-based functionality of Maps by going to the Location Services setting on your Paired Device and turning off the individual location setting for Maps. Certain Maps features will however be unavailable if you disable the Location Services setting.
(c) You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Mighty Cast, its affiliates, agents, principals, or licensors shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
(d) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Mighty Cast is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Mighty Cast, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
(e) Neither Mighty Cast nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of information, location data, triggered actions (also known as “Hacks”) or any other data displayed by any Services. Location data provided by any Services, including the Mighty Cast Maps service, is provided for basic purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage.
(f) To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services. You agree that the Services contain proprietary content, information and material that is owned by Mighty Cast, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Mighty Cast. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Mighty Cast is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
(g) In addition, Services and Third Party Materials that may be accessed, linked to or displayed on the Nex Band are not available in all languages or in all countries or regions. Mighty Cast makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Mighty Cast and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Mighty Cast be liable for the removal of or disabling of access to any such Services. Mighty Cast may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

6. Termination.

This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Mighty Cast if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Software. Sections 4, 5, 6, 7, 8, 11 and 12 of this License shall survive any such termination.

7. Disclaimer of Warranties.

7.1 If you are a customer who is a consumer (someone who uses the Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
7.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MIGHTY CAST AND MIGHTY CAST’S LICENSORS (COLLECTIVELY REFERRED TO AS “MIGHTY CAST” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.4 MIGHTY CAST DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS MIGHTY CAST PRODUCTS AND SERVICES.
7.5 YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
7.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MIGHTY CAST OR A MIGHTY CAST AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

8. Limitation of Liability.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL MIGHTY CAST, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF MIGHTY CAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Mighty Cast’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two hundred and fifty dollars (U.S.$250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

9. Export Control.

You may not use or otherwise export or re-export the Software except as authorized by Canadian law and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. or Canadian embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by Canadian or United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

10. Government End Users.

The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States and Canada.

11. Controlling Law and Severability.

This License will be governed by and construed in accordance with the laws of the Province of Quebec, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are a consumer based in the United Kingdom, this License will be governed by the laws of the jurisdiction of your residence. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.

12. Complete Agreement; Governing Language.

This License constitutes the entire agreement between you and Mighty Cast relating to the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Mighty Cast. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.

13. Third Party Acknowledgements.

Portions of the Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Software, and your use of such material is governed by their respective terms.

NOTICES FROM MIGHTY CAST

If Mighty Cast needs to contact you about your product or account, you consent to receive the notices by email. You agree that any such notices that we send you electronically will satisfy any legal communication requirements.

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