Terms of Service
PHYSMODO TERMS OF USE
Updated JUNE 1, 2026
PLEASE READ THE FOLLOWING TERMS OF USE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW) OFFERED BY PHYSMODO, INC. (“US”, “WE”, “OUR” or “PHYSMODO”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE PHYSMODO SOFTWARE (“SUBSCRIPTION”), AND THE SERVICES, FEATURES, CONTENT, WEBSITES (OR OTHER LINKED PAGES) OR APPLICATIONS OFFERED, FROM TIME TO TIME, BY PHYSMODO IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE(S)”). THESE TERMS COVER IMPORTANT INFORMATION ABOUT SERVICES PROVIDED TO YOU AND ANY CHARGES AND AMOUNTS WE BILL YOU. THESE TERMS INCLUDE INFORMATION ABOUT FUTURE CHANGES TO THESE TERMS AND AUTOMATIC RENEWALS.
"YOU” AND “YOUR” REFER TO THE PERSON ACCESSING OR USING THE SERVICES. BY ACCESSING AND USING THE SERVICE IN ANY MANNER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT AND THE PHYSMODO PRIVACY POLICY (THE “PRIVACY POLICY”), WHICH IS INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE. IF YOU DO NOT ACCEPT THIS AGREEMENT AND THE PRIVACY POLICY, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
1. INTRODUCTION
Physmodo provides a quick, simple and objective movement assessment, indicates where you may have movement issues and delivers corrective exercise programming. Physmodo may also collect non-movement related data such as sleep, hydration, stress, soreness or injury (together the “Services,” as further defined below).
The Services allow you to track, manage and share movement-related information collected by Physmodo. The Services are provided to you by Physmodo, in connection with our partners, service providers or other affiliates. So that we may safely and responsibly manage our website and mobile applications, your use of the Services is subject to this Agreement and the Privacy Policy. Physmodo may modify this Agreement, the Privacy Policy, Content and/or the Services at any time and such modification will be effective upon posting such modifications to the Services. By continuing to access or use the Services after such modification, you are agreeing to be bound by the modified Agreement, Privacy Policy, Content and/or the Services, as applicable.
2. REGISTRATION
In order to use the Services, you must subscribe, pay any applicable subscription fees (“Subscription Fees”) as and when due, and create an account (“Account”). You agree to provide true, accurate and complete information and keep your Account information current and updated. You shall not select or use as a username (i) a name of another person with the intent to impersonate that person or (ii) a name subject to any rights of a person other than yourself without appropriate authorization. You are solely responsible for any and all activities that occur under your Account or password, and for keeping your Account password confidential and secure. You may never use another person’s account or registration information for the Services without permission.THE SERVICES ARE FOR YOUR USE ONLY. YOU MAY NEVER USE THE SERVICES FOR COMMERCIAL PURPOSES. SHALL YOUUSE THE SERVICES FOR COMMERCIAL PURPOSES, IT MAY VIOLATE AGREEMENTS WITH OTHER PHYSMDOO CUSTOMERS AND USERS, AND YOU AGREE THAT PHYSMODO MAY PURSUE LEGAL REMEDIES TO ENFORCE THIS POLICY. You agree to notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account or password. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. Physmodo will not be liable for any loss or damage arising from your failure to comply with this Section.
3. ELIGIBILITY
You represent and warrant that you are at least 13 years of age, provided that if you are under the legal age to form a binding contract in your jurisdiction, your use of the Services is subject to requirements of parental consent, in which case (i) your supervising parent or legal guardian is considered the user under this Agreement and is responsible for any and all activity; and (ii) you represent that your parent or legal guardian has reviewed and agreed to this Agreement and the Privacy Policy. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. The right to access the Services is revoked where this Agreement or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
4. USE OF THE SERVICES
Physmodo software, text, graphics, images, video, audio, data, and other technology and material are made available to you through the Services (collectively referred to as the “Content”). The Services and Content include proprietary and third-party advanced technologies, such as artificial intelligence, machine learning systems, and similar technology and features (together, “AI Technology”), including third party large language models (“LLM”). Subject to this Agreement and your Subscription, we grant to you a worldwide, non-exclusive, non-sublicensable and non-transferable limited license to access and use (i.e., to download and display locally) the Content and the software and applications made available through the Services solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. The Content may be owned by us or may be provided through an arrangement we have with others, including other users of the Services, or our licensors, partners, sponsors, or affiliates. The Content is protected by intellectual property rights, including copyright under both United States and other laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Other than your rights in any User Content (as defined below), you have no rights in or to the Content, and you may not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us or the owner of the Content. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. If you violate any part of this Agreement, your permission to access and/or use the Content and Services automatically terminates and you must immediately destroy any copies you have made of the Content.
Various company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”). Your use of the Services should not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Third-Party Trademark displayed on this Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.
The Services include access to, links to, and content, recommendations, and data from third-party websites, products and services (“External Services”). The External Services include AI Technology, including LLM. These External Services are provided solely as a convenience to you, are not an endorsement by us of the content, recommendations, and data on or made available through such External Services, and may be subject to separate legal terms and conditions between you and third parties. The content, recommendations, and data of such External Services are developed and provided by others. In addition, the Services permit access to content, recommendations, and data posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.
As described above, the Services are for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by Physmodo. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications; (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof; (iii) use of web scraping, web harvesting, or web data extraction methods from Physmodo even if the Account owner gives permission; and (iv) any use of the Services which is unlawful or in violation of this Agreement.
5. TERMINATION
Unless otherwise prohibited by law, and without prejudice to Physmodo’s other rights or remedies, Physmodo shall have the right to immediately terminate (i) your Subscription if you breach any of the terms of this Agreement and (ii) any of the Services, in our sole discretion at any time; provided that if you are not in breach of this Agreement, we will provide you with a pro rata refund of any Subscription Fee paid by you in advance reflecting the period where you did not benefit from the terminated Services as a result of such termination.
You must maintain an active Subscription to continue using the Services. This Agreement and your Subscription may be renewed for additional Subscription periods pursuant to the Subscription purchased. If you do not maintain an active Subscription and pay all Subscription Fees when due, this Agreement shall terminate.
If you have obtained a free Subscription, Physmodo reserves the right at any time to modify or discontinue, temporarily or permanently, such free Subscription, your Account and your access to the Services with or without notice. Unless modified or discontinued by Subscription in its sole discretion, your free Subscription shall continue until the end of the applicable free Subscription period, or until you cancel or upgrade to a paid Subscription. Unless otherwise stated, all Subscription Fees are non-refundable, even if you stop using the Services.
If any Subscription Fees are due are outstanding for a period of three (3) days or more, your Account may go into an inactive state. In this inactive state, you will not have access to any premium offerings. Upon appropriate payment, your Account will be reactivated, and you will be able to utilize the full functionality of the Subscription.
Upon cancellation or termination, all licenses granted to you hereunder shall terminate automatically, your right to use the Services shall cease and your User Content, as defined below, will no longer be available to you through the Services.
6. SUPPORT
You shall receive the support and maintenance, if any, as set forth in our FAQs or as provided with your Subscription.
7. USER CONTENT
The Services may include functionality to permit the submission of your Content, whether manually at the direction of users of the Services or automatically in accordance with your Account settings (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You warrant and represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. User Content includes, without limitation, any user profile information you submit, including, without limitation, movement scores, correct exercise programs, statistics and wellness scores and information generated through the use of the Services, and any information submitted by you to “tag” any activities recorded through the Services. You understand that Physmodo does not guarantee any confidentiality with respect to User Content that you submit and make available to others.
You shall be solely responsible for User Content you submit or allow to be collected and the consequences of our posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) you have the express specific, informed and unambiguous consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to edit, modify, truncate, aggregate, use, reproduce, distribute, prepare derivative works of, modify, display, perform, publish and otherwise commercially exploit all or any portion of the User Content in connection with our provision of the Services and our (and our successors) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels and sharing the User Content with social media platforms (i.e., posting User Content to X or Instagram) if enabled in your Account’s sharing settings) with our business partners and licensees for informational and analytical purposes.
If your use of the Services is on behalf of or managed by a coach, team, organizing body or other entity you are affiliated with (“Managing Entity”), your User Content may also be shared with that team or other organization as more fully described in our Privacy Policy. You consent to that sharing and acknowledge and agree that we are not responsible for any use or disclosure of your information by that Managing Entity. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Services, if you have permitted such access through your Account settings, and to use, reproduce, distribute, prepare derivative works of, display, publish and perform such User Content as permitted through the functionality of the Services and under this Agreement. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities and infringement of intellectual property rights in connection with the Services, and we will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, Content or User content that is of excessive length, unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate. We may remove such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement and other notices relating to User Content and/or violation of this Agreement (e.g., violations of criminal laws) is: General Counsel, Physmodo, Inc., 2251 Vantage Street, Suite 100, Dallas, TX 75207. Only notices pursuant to this Section 7 and notices relating to complaints in connection with User Content or violations of this Agreement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to the address in Section 17.
7. COMMUNICATIONS AND PARTNER OFFERS
By creating an Account or using the Services, you expressly agree that Physmodo may contact you using the information you provide for purposes related to your use of the Services, including delivery of results, product updates, and other service-related messages.
You also agree that Physmodo may send promotional communications, including offers, content, and recommendations from Physmodo and its partners related to health, fitness, and wellness.
You acknowledge and agree that Physmodo mayshare your information with its health, fitness, and wellness partners to facilitate such communications and offers, in accordance with our Privacy Policy.
You may opt out of promotional communications at any time by following the unsubscribe instructions included in such communications or by contacting support@physmodo.com. Opting out of promotional communications will not affect your ability to receive service-related communications.
8. NO MEDICAL ADVICE
PHYSMODO PROVIDES THE SERVICES FOR YOU TO TRACK, MANAGE, AND SHARE YOUR MOVEMENT AND WELLNESS-RELATED INFORMATION. THE SERVICES AND ANY RESULTS OR CONTENT DISPLAYED VIA THE SERVICES, WHETHER PROVIDED BY PHYSMODO OR THIRD PARTIES, DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR (I) ADVICE FROM YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS, OR ANY DIAGNOSIS OR TREATMENT OR (II) A VISIT, CALL OR CONSULTATION WITH YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS. THE SERVICES DO NOT AND ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE SERVICES, OR COMMUNICATION WITH US VIA THE INTERNET, E-MAIL OR OTHER MEANS, DOES NOT CREATE ANY DOCTOR-PATIENT RELATIONSHIP. IF YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR DOCTOR OR OTHER HEALTHCARE PROVIDER. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. YOU SHOULD ALWAYS CONSULT A QUALIFIED AND LICENSED MEDICAL PROFESSIONAL PRIOR TO BEGINNING OR MODIFYING ANY DIET, EXERCISE, CONSULTATIONS, OR TRAINING PROGRAM. YOU AGREE THAT YOUR EXERCISE ACTIVITIES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF BODILY INJURY, DEATH OR PROPERTY DAMAGE, AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES.
9. FITNESS RELATED CONTENT
The Content available through the Services may include training recommendations to help you meet your health, fitness, and wellness goals. You acknowledge and agree that Physmodo is not a healthcare provider, personal trainer, fitness instructor or coach and that the Services (including any recommendations and any information available through the Services that may appear to be personalized) may not be appropriate for you. Physmodo is not responsible for any results that may or may not be obtained from the use of the Service.
10. PAYMENT OF FEES
a. Fees. You agree to pay the Subscription Fees as described in this Agreement and during the purchase and payment process. Any payment terms presented to you in the process of obtaining your Subscription are deemed part of this Agreement and are incorporated herein by reference.
b. Billing. We may collect payments from you directly or we may use a third-party payment processor (“Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for your Subscription. The processing of payments by a Payment Processor will be subject to the terms, conditions and privacy policies of such Payment Processor in addition to this Agreement. We are not responsible for any errors by a Payment Processor. By choosing to purchase a Subscription, you agree to pay us, either directly or through a Payment Processor, all Subscription Fees and other charges at the prices then in effect and in accordance with the applicable payment terms and you authorize us, through a Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using your selected Payment Method. We reserve the right to correct any errors or mistakes that we or a Payment Processor make even if we or a Payment Processor have already requested or received payment.
11. INDEMNITY
You agree to defend, indemnify, and hold us and our subsidiaries, affiliates, officers, agents, suppliers, employees, partners and licensors harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your User Content, (ii) your breach of this Agreement, (iii) your uploading of, access to, connection to, or use or misuse of the Content or the Services, or (iv) your violation of law. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
12. AI TECHNOLOGY
a. AI Technology is new and evolving. Some AI Technology, including third party LLM made available through the Services, allow users to submit queries or other prompts, and the AI Technology will generate and return to you content, recommendations, data, or other information through the Services (“Output”).
b. You acknowledge and agree that, in addition to the limitations and restrictions set forth in this Agreement, there are numerous limitations that apply with respect to AI Technology and the Output it generates, including that (i) it may contain errors or misleading information and may not be accurate or reliable; (ii) AI Technology is based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content; (iii) AI Technology can struggle with understanding the nuances of language, including slang, idioms, and cultural references, which can result in Output that is out of context or does not make sense; (iv) AI Technology does not have emotions and cannot understand or convey emotions in the way humans can, which can result in Output that lacks the empathy and emotion that humans are able to convey; (v) AI Technology can perpetuate biases that are present in the data used to train them, which can result in Output that is discriminatory or offensive; (vi) AI Technology can struggle with complex tasks that require reasoning, judgment and decision-making; (vii) AI Technology require large amounts of data to train and generate content, and the data used to train AI Technology may be of poor quality or biased, which will negatively impact the accuracy and quality of the generated Output; and (viii) AI Technology-generated Output can lack the personal touch that comes with content created by humans, which can make it seem cold and impersonal.
c. You will use independent judgement and discretion before relying on or otherwise using Output. Output is for informational purposes only and is not a substitute for advice from a qualified professional.
d. Physmodo bears no liability to you or anyone else arising from or relating to your use of AI Technology.
13. DISCLAIMER OF WARRANTY
THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND. WE HEREBY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT) OR SERVICES, INCLUDING BUT NOT LIMITED TO ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
NEITHER WE NOR OUR AFFILIATES OR PARTNERS SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. FURTHER, WE MAKE NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ERROR FREE OR THAT THE SERVICES OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. YOU AGREE THAT YOUR USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES AND CONTENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, IN EXCESS OF ONE HUNDRED DOLLARS, EVEN IF A WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU ARE A USER FROM NEW JERSEY, SECTION 13 (DISCLAIMER OF WARRANTY) AND SECTION 14 (LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PROVISION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PROVISION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PROVISIONS OF THE APPLICABLE SECTIONS.
15. CHANGES TO SERVICES
The Services may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We will try to give you notice when we make a material change to the Services, but this is not always practical. Similarly, we reserve the right to remove any Content or User Content from the Services at any time, for any reason (including, but not limited to if someone alleges you contributed Content or User Content in violation of this Agreement), in our sole discretion, and without notice.
16. GENERAL
a. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. This Agreement will inure to the benefit of our successors and permitted assigns.
b. Governing Law; Venue. This Agreement are governed by the internal substantive laws of the State of Texas, without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Dallas in the State of Texas.
c. Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
d. Non-Waiver. Failure by us to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
e. Entire Agreement. Except as expressly agreed by us and you, this Agreement, the Privacy Policy and any other terms presented to you on or before you create your Account and pay Subscription Fees constitute the entire agreement between you and us with respect to the subject matter, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.
f. Headings. The section headings are provided merely for convenience and shall not be given any legal import.
g. Survival. All sections of this Agreement that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled User Content, Indemnity, Disclaimer of Warranty and Limitation of Liability, and General.
h. Third Party Distribution Channels. Physmodo offers software applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain such software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services .With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
Physmodo and you acknowledge that this Agreement is concluded between Physmodo and you only, and not with Apple Inc. (“Apple”), and that as between Physmodo and Apple, Physmodo, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-exclusive, revocable, non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Physmodo’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Physmodo and you acknowledge that Physmodo, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software 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 Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Physmodo and Apple, Physmodo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Physmodo at the e-mail address, phone number or mailing address set forth in Section 17 of this Agreement.
Physmodo and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
17. CONTACT
If you have any questions regarding the Services, please contact Physmodo via contact support@physmodo.com. Our mailing address is Physmodo, Inc., 2251 Vantage Street, Suite 100, Dallas, TX 75207.
18. NOTICE FOR CALIFORNIA MEMBERS
Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.