Terms of Use
Important Notice: This Terms of Use agreement is subject to binding arbitration and a waiver of class action rights as detailed in the section “Binding Arbitration and Class Action Waiver”. PLEASE READ THE AGREEMENT CAREFULLY.
Last updated: January 1st 2024
Please read these terms of use carefully before using this app. These terms of use (“Terms”, “Agreement”) are an agreement between Phys Tech LLC (“Phys Tech LLC”, “us”, “we” or “our”), and you (“User”, “you” or “your”). This Agreement sets forth the general terms and conditions of your use of the Physique Tracker mobile application and any of its products or services (collectively, “Mobile Application” or “Services”). By using this Mobile Application on any computer, mobile phone, tablet, console or other device (collectively, “Device”), you signify that you have read, understand and agree to be bound by these Terms of Use and any other applicable law. We may change these Terms and Conditions at any time without notice, effective upon its posting to the Mobile Application and/or this webpage. Your continued use of the Mobile Application shall be considered your acceptance to the revised Terms and Conditions. If you do not agree to these Terms and Conditions, please do not use this Mobile Application.
Physical Activity Notice
The Mobile Application includes features that promote physical activity and may not be suitable for everyone. Consider the risks involved and consult with your medical professional before engaging in any physical activity. Phys Tech LLC is not responsible or liable in any way, for any injuries or damages you may sustain that result from your use of, or inability to use, the features of the Mobile Application. You agree that using Phys Tech LLC and following its workout and exercise recommendations are done entirely at your own risk.
Accounts and Membership
You must be at least 18 years of age to use this Mobile Application. By using this Mobile Application and by agreeing to this Agreement you warrant and represent that you are at least 18 years of age. If you create an account in the Mobile Application, you are responsible for maintaining the security of your account and you are fully responsible for all activities that occur under the account and any other actions taken in connection with it. We may monitor and review new accounts before you may sign in and use our Services. Providing false contact information of any kind may result in the termination of your account. You must immediately notify us of any unauthorized uses of your account or any other breaches of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. We may suspend, disable, or delete your account (or any part thereof) if we determine that you have violated any provision of this Agreement or that your conduct or content would tend to damage our reputation and goodwill. If we delete your account for the foregoing reasons, you may not re-register for our Services. We may block your email address and Internet protocol address to prevent further registration.
Your Responsibilities
Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your Account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your Account.
You will ensure that Your Use of the Services does not violate any applicable law. You are solely responsible for Your Use of the Services.
Trial Subscriptions
Phys Tech LLC may offer free trial subscription periods. You may cancel your subscription at any time during your trial period through the Settings on your iPhone or iPad. If you fail to cancel your free trial, you agree that Phys Tech LLC will automatically continue your subscription and charge you based on the plan you signed up for.
Backups
We are not responsible for Content residing in the Mobile Application. In no event shall we be held liable for any loss of any Content. It is your sole responsibility to maintain appropriate backup of your Content. Notwithstanding the foregoing, on some occasions and in certain circumstances, with absolutely no obligation, we may be able to restore some or all of your data that has been deleted as of a certain date and time when we may have backed up data for our own purposes. We make no guarantee that the data you need will be available.
Advertisements
During use of the Mobile Application, you may enter into correspondence with or participate in promotions of advertisers or sponsors showing their goods or services through the Mobile Application. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. We shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party.
By submitting your email address to us, you grant us the right to communicate to you via email. You may opt out at anytime by emailing us at help @ Phys Tech . LLC or via the Opt Out link in any email we send.
Links to Other Mobile Applications
Although this Mobile Application may link to other mobile applications, we are not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with any linked mobile application, unless specifically stated herein. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any businesses or individuals or the content of their mobile applications. We do not assume any responsibility or liability for the actions, products, services, and content of any other third-parties. You should carefully review the legal statements and other conditions of use of any mobile application which you access through a link from this Mobile Application. Your linking to any other off-site mobile applications is at your own risk.
Prohibited Uses
In addition to other terms as set forth in the Agreement, you are prohibited from using the Mobile Application or its Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related mobile application, other mobile applications, or the Internet; (h) to collect or track the personal information of others; (i) to data mine, spam, phish, pharm, pretext, spider, crawl, or scrape (or similar data gathering methods); (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related mobile application, other mobile applications, or the Internet. Further, you may use the Content only for your own non-commercial use to use the Mobile Application. You agree not to change or delete any ownership notices from materials downloaded or printed from the Mobile Application. You agree not to modify, copy, translate, broadcast, perform, display, distribute, frame, reproduce, republish, download, display, post, transmit or sell any Intellectual Property or Content appearing on the Mobile Application, including Personal Information (defined below), without PJCS LLC.’s prior written consent, unless it is your own Personal Information that you legally post on the Mobile Application. Nothing in these Terms of Use shall be interpreted as granting any license of intellectual property rights to you. We reserve the right to terminate your use of the Service or any related mobile application for violating any of the prohibited uses.
Use Interaction Disclaimer
You are solely responsible for your interactions with other people, whether online or in person. Phys Tech LLC is not responsible or liable for any loss or damage resulting from any interaction with other Mobile Application users, persons you meet through the Mobile Application, or persons who find you because of information posted on, by or through the Mobile Application. You agree to take reasonable precautions in all interactions with other users on the Mobile Application, and conduct any necessary investigation before meeting another person. Phys Tech LLC is under no obligation to become involved with any user dispute, but may do so at its own discretion.
Intellectual Property Rights
All intellectual property on the Mobile Application and Website are owned by Phys Tech LLC or its licensors, which includes materials protected by copyright, trademark, or patent laws. All trademarks, service marks, trade names, and trade dress, are owned, registered and/or licensed by Phys Tech LLC. All content on the Mobile Application (except for Personal Information), including but not limited to our name, logo, text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features and all other content (“Content”) is a collective work under the United States and other copyright laws and is the proprietary property of Phys Tech LLC; All rights reserved. This Agreement does not transfer to you any intellectual property owned by Phys Tech LLC or third-parties, and all rights, titles, and interests in and to such property will remain (as between the parties) solely with Phys Tech LLC. All trademarks, service marks, graphics and logos used in connection with our Mobile Application or Services, are trademarks or registered trademarks of Phys Tech LLC or Phys Tech LLC licensors. Other trademarks, service marks, graphics and logos used in connection with our Mobile Application or Services may be the trademarks of other third-parties. Your use of our Mobile Application and Services grants you no right or license to reproduce or otherwise use any Phys Tech LLC or third-party trademarks.
Disclaimer of Warranty
You agree that your use of our Mobile Application or Services is solely at your own risk. You agree that such Service is provided on an “as is” and “as available” basis. We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements, or that the Service will be uninterrupted, timely, secure, or error-free; nor do we make any warranty as to the results that may be obtained from the use of the Service or as to the accuracy or reliability of any information obtained through the Service or that defects in the Service will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of Service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. We make no warranty regarding any goods or services purchased or obtained through the Service or any transactions entered into through the Service. No advice or information, whether oral or written, obtained by you from us or through the Service shall create any warranty not expressly made herein.
Limitation of Liability
To the fullest extent permitted by applicable law, in no event will Phys Tech LLC, its affiliates, officers, directors, employees, agents, suppliers or licensors be liable to any person for (a): any indirect, incidental, special, punitive, cover or consequential damages (including, without limitation, damages for lost profits, revenue, sales, goodwill, use of content, impact on business, business interruption, loss of anticipated savings, loss of business opportunity) however caused, under any theory of liability, including, without limitation, contract, tort, warranty, breach of statutory duty, negligence or otherwise, even if Phys Tech LLC has been advised as to the possibility of such damages or could have foreseen such damages. To the maximum extent permitted by applicable law, the aggregate liability of Phys Tech LLC and its affiliates, officers, employees, agents, suppliers and licensors, relating to the services will be limited to an amount greater of one dollar or any amounts actually paid in cash by you to Phys Tech LLC for the prior one month period prior to the first event or occurrence giving rise to such liability. The limitations and exclusions also apply if this remedy does not fully compensate you for any losses or fails of its essential purpose.
Indemnification
You agree to indemnify and hold Phys Tech LLC and its affiliates, directors, officers, employees, and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, incurred in connection with or arising from any third-party allegations, claims, actions, disputes, or demands asserted against any of them as a result of or relating to your Content, your use of the Mobile Application or Services or any willful misconduct on your part.
Severability
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
Binding Arbitration – Any dispute, claim or controversy(“Claim”) relating in any way to this Agreement, the Site, or your use of the Services will be resolved by binding arbitration as provided in this section, rather than in court, except that you may assert claims in small claims court if your claims qualify.
If you are located in the United States: This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of New York. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The arbitration will be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”) as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules. The arbitrator’s decision shall be final, binding, and non-appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or of the arbitrator’s award; any such suit may be brought only in a Federal District Court or a New York state court located in New York County, New York. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Class Action Waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND WE EXPRESSLY WAIVE ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. Unless both you and we agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes
30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: via email at developer@phystech.llc with subject line LEGAL OPT OUT. The notice must be sent within 30 days of your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we will also not be bound by them.
Dispute Resolution
The formation, interpretation, and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of New York, United States without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of United States. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in New York, United States, and you hereby submit to the personal jurisdiction of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Assignment
You may not assign, resell, sub-license or otherwise transfer or delegate any of your rights or obligations hereunder, in whole or in part, without our prior written consent, which consent shall be at our own sole discretion and without obligation; any such assignment or transfer shall be null and void. We are free to assign any of its rights or obligations hereunder, in whole or in part, to any third-party as part of the sale of all or substantially all of its assets or stock or as part of a merger.
Changes and Amendments
We reserve the right to modify this Agreement or its policies relating to the Mobile Application or Services at any time, effective upon posting of an updated version of this Agreement in the Mobile Application. When we do, we will post a notification in our Mobile Application. Continued use of the Mobile Application after any such changes shall constitute your consent to such changes.
Acceptance of These Terms
You acknowledge that you have read this Agreement and agree to all its terms and conditions. By using the Mobile Application or its Services you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to use or access the Mobile Application and its Services.
Contacting Us
If you have any questions about the Terms of Use, please contact us at developer@phystech.llc