Terms & Conditions
Last modified: Jan 30, 2024
These Terms and Conditions constitute a binding agreement (the “Agreement”) between TRACER Fitness Incorporated, a Utah corporation (“Tracer” or “we”) and the user of the Tracer Services (“Client” or “you”). This Agreement governs your use of the Tracer web application and/or mobile application (collectively, the “App”), and all services provided by Tracer through or in connection with the App (such services, together with the App, the “Services”). By checking the “I Accept” box when you register to use the Services, you accept and agree to be bound by the Agreement. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
Services and Support
Subject to the terms of this Agreement, Tracer will use commercially reasonable efforts to provide you with the Services. As part of the registration process, you will choose a user name and password for your user account. Tracer reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
Subject to the terms hereof, Tracer will provide you with reasonable technical support services in accordance with Tracer’s standard practices.
Restrictions and Responsibilities
You shall not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to the Tracer mobile and web app, Tracer hereby grants you a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
Further, you may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
You represent, covenant, and warrant that you will use the Services only in compliance with Tracer’s standard published policies then in effect (the “Policies”) and all applicable laws and regulations. You hereby agree to indemnify and hold harmless Tracer against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services. Although Tracer has no obligation to monitor your use of the Services, Tracer may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your user account, passwords and files, and for all uses of your user account or the Equipment with or without your knowledge or consent.
Proprietary Rights
You shall own all right, title and interest in and to all non-public data you provide to Tracer to enable Tracer to provide the Services (“Client Data”). Tracer shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Tracer has the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Tracer will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Tracer offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business. For the avoidance of doubt, Tracer personnel, including coaches and engineers, will have access to certain Client Data including workout schedules and data, but will not access or use such data other than to provide or improve the Services.
Payment and Fees
You must pay Tracer all applicable service and subscription fees, as set forth on the Tracer website at [https://tracerfitness.com] (the “Fees”). Tracer reserves the right to change the Fees and to institute new charges and Fees at the end of each Subscription Term, upon fifteen (15) days prior notice to you (which may be sent by email). If you believe that Tracer has billed you incorrectly, you must contact Tracer no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Tracer’s Client support department.
When you subscribe to paid features of the Services, you will be required to provide us with current information for at least one valid credit card. You hereby authorize Tracer to automatically charge this credit card for any Fees amounts you owe any amounts pursuant to this Agreement on or around the first day of each Subscription Term. You will be responsible for, and your credit card will be charged for, all taxes associated with Services other than U.S. taxes based on Tracer’s net income.
Unpaid amounts (including rejected charges to your credit card) are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Without limiting the foregoing or any of Tracer’s rights or remedies hereunder (including the right to terminate this Agreement pursuant to Section 5.2), if your credit card is rejected or if any amounts due hereunder are not timely paid, Tracer may, in its discretion, suspend your access to the Services until all amounts due are paid in full.
Term and Termination
Subject to earlier termination as provided below, this Agreement will begin on the date you register to use the Services and will continue until terminated pursuant to this Section 5 (the “Term”)..
If you subscribe to paid features of the Services, your subscription will begin on the date you subscribe to such services and will continue for the subscription term you select when you subscribe and will automatically renew for additional periods of the same duration (each such period, a “Subscription Term”), unless you request termination of your subscription before the end of the then-current Subscription Term. You may terminate your subscription without terminating this Agreement.
Tracer may, in its sole discretion, terminate this Agreement immediately and without notice to you if you breach any of the terms or conditions of this Agreement, including your payment obligations.
In addition to Tracer’s right to terminate this Agreement pursuant to Section 5.3, either may terminate this Agreement at any time. You may terminate this Agreement by logging into your user account and following the cancellation procedures, or by contacting Tracer directly. If Tracer terminates this Agreement for any reason other than pursuant to Section 5.3, it will notify you in writing at the email address linked to your user account
If you have not subscribed to paid features of the Services, any termination of this Agreement will be effective immediately upon notice by the terminating party. If you have subscribed to paid features of the Services, then following notice of termination by either party, this Agreement will terminate at the end of the then-current Subscription Term Notwithstanding the foregoing, if Tracer terminates this Agreement pursuant to Section 5.3, such termination will be effective immediately upon Tracer’s determination, regardless of whether you have subscribed to paid features of the Services. UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT, TRACER WILL NOT REFUND ANY AMOUNTS PAID BY YOU FOR ANY REASON.
Upon termination of this Agreement, Tracer may delete your user account and all Client Data associated with such account. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Warranty and Disclaimer
Tracer shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Tracer or by third-party providers, or because of other causes beyond Tracer’s reasonable control, but Tracer shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, TRACER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Without limiting the foregoing, you acknowledge and agree that success in any training or coaching program depends on various factors, including personal commitment, consistency, and individual differences. TRACER CANNOT AND DOES NOT GUARANTEE SPECIFIC OUTCOMES OR RESULTS FROM YOUR USE OF THE SERVICES.
Limitation of Liability
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, TRACER AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO TRACER FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT TRACER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
All information provided by or through the Services is for informational purposes only and you must decide what to do with it. Tracer strongly recommends that you consult with your physician or a healthcare provider before starting any training plan or fitness or wellness program. YOU ACKNOWLEDGE AND AGREE THAT TRACER CANNOT AND HAS NOT ASSESSED YOUR INDIVIDUAL HEALTH STATUS OR PROVIDED GUIDANCE ON WHETHER ANY ACTIVITIES SUGGESTED THROUGH THE SERVICES ARE SUITABLE FOR YOU.
Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. You may not assign, transfer, or sublicense this Agreement without Tracer’s prior written consent. Tracer may transfer and assign any of its rights and obligations under this Agreement without your consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Tracer in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions.
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