550 Madison Fitness and Wellness End User License Agreement
Last Modified: July 10, 2023
OAC 550 Owner LLC (d/b/a 550 Madison) (“550 Madison”) is making available a proprietary software platform and services (the “Oasis 550 Madison Fitness and Wellness App” or the “App”) in connection with the operation of the Oasis Fitness Center located at 550 Madison Avenue, New York, New York 10022 (the “Property”). The App consists of a mobile application and related services that are subject to the terms of service set forth in this End User License Agreement (“EULA”), as set forth below.
I. Contractual Relationship.
PLEASE READ THIS EULA CAREFULLY. THIS EULA is a binding agreement between you (“you” or “your”), as the end user of the services described in this EULA, and 550 Madison (“we,” us,” or “our”).
ARBITRATION. THIS EULA CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE (SEE SECTION VII) REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT ALL CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU WILL NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
This EULA governs your access to and use of the App. This EULA becomes effective upon your electronic acceptance of its terms. BY INDICATING ACCEPTANCE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
We may revise and update this EULA from time to time in our sole discretion. Any updates will be posted on the App. All changes are effective immediately when we post them, and apply to all access to and use of the App thereafter. If you disagree with the changes, you may cease your use of the App at any time. Your continued use of or access to the App after we make any updates are deemed to be acceptance of those updates. You are encouraged to review this EULA periodically for any updates.
II. License Grant and Scope.
1. Grant of License. Subject to the terms and conditions of this EULA, 550 Madison grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to download, access, install, and use the Oasis 550 Madison Fitness and Wellness App. The foregoing license to the App shall be solely for your personal, non-commercial use, and you shall not permit access to or use of your log-in credentials to the App to any other person or entity.
2. Prohibitions. Under no circumstances may you: (a) copy, reproduce, modify, create derivative works based on, transfer, upload for commercial purposes, decompile, reverse compile, disassemble, or reverse engineer the App or any portion thereof; (b) unbundle, sublicense, assign, transfer, display, distribute, rent, loan, sell, or lease the App, or any portion thereof, or data thereon (except your own User Content that you legally upload to the App) to any third party; (c) attempt to learn, access, decompile, reverse engineer, or otherwise derive the source code, algorithms, structure, or ideas upon which the App is based; (d) copy, change, delete, alter, interfere with or hack any content or functionality within the App or any servers or networks connected thereto; (e) penetrate, breach, avoid or otherwise hack the security controls implemented on the App; (f) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the App or any servers or networks connected to the App; (g) introduce into the App any virus, rogue program, Trojan horse, worm, back door, time bomb, drop dead device, software routine designed to disable a computer program, or other malicious or intentionally destructive code, or equipment components designed to permit unauthorized access to disable, erase, or otherwise harm the App or perform any such actions; (h) obtain or attempt to obtain access (including through use of any bot, spider, data mining technique, scraping, or similar data gathering or extraction methods, or other automatic or manual device or process) for the purpose of harvesting or compiling information or materials on the App for any reason; (i) harvest, access or attempt to harvest or access any information (including contact information) or content of other users of the App for any reason whatsoever, or take any action that interferes with any other person’s or entity’s use of the App; (j) attempt to access or access the App by impersonation of any person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity; (k) take any action that poses or creates a privacy or security risk to any person or entity; (l) use the App in any manner that violates any applicable local, state, national, or international law, or any regulations having the force of law; (m) use the App in any manner that misappropriates or infringes any intellectual property rights of 550 Madison or any third party; (n) encourage any unlawful activities when using the App, or post anything to the App that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any person or entity; (o) access or use the App for competitive purposes or to develop software or services competitive with the App; (p) use the App to advertise or offer to sell or buy any goods or services for any purpose unless specifically authorized in writing to do so by us; (q) post or upload anything that constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales unless expressly authorized to do so in writing by us; (r) decrypt, transfer, frame, display, or translate any part of the App; or (q) grant any other person or entity the right or access to do any of the foregoing.
3. Reserved Rights. All rights not specifically granted to you hereunder are reserved by us. Nothing herein shall prevent us from promoting, providing, licensing, or sublicensing use of or access to the App or providing any services to other persons or entities. We reserve the right to withdraw or modify any content or services available through the App without notice. We also reserve the right (but not the obligation) to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this EULA, including through the prohibitions described in this section, including through removing any offending content from the App, suspending or terminating the account of such violators, and reporting them to law enforcement and other authorities.
4. Third-Party Materials.
b.) We do not assume and will not have any direct or indirect liability or responsibility to you or any other person or entity for any Third-Party Materials or any damage, loss, cost, or other liability of any sort caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Materials or as a result of any dealings with such third parties, or as a result of the presence of any third parties on the app, AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIMS AGAINST US ARISING FROM OR RELATED TO YOUR RELATIONSHIP WITH ANY THIRD PARTY.
5. User Content. The use of the App, and all content, data, text, graphics, images, other materials, property of any kind, and any other information provided on, uploaded, published, contributed, entered into or made available through the App by you (collectively, the “User Content”), is solely your responsibility. You shall comply with all laws, regulations, and rules, including, without limitation, privacy laws applicable to the User Content. You acknowledge that we exercise no control over the User Content or the use of the User Content. By transferring User Content, you agree that we may process, transmit, and/or store User Content only to the extent necessary for, and for the sole purpose of, enabling us to perform our obligations under this Agreement. You acknowledge that we may, in our sole discretion, immediately delete, destroy, or otherwise purge from the App any User Content after processing such information. Under no circumstances will we be liable in any way for any content or materials of any third parties (including User Content), including, but not limited to, for any errors or omissions in any content or materials, or for any loss or damage of any kind incurred as a result of the use of any such content or materials. You acknowledge that we do not pre-screen User Content, but that we and our designees will have the right (but not the obligation) in our sole discretion to refuse or remove any content or materials (including User Content) that is available via the App. Without limiting the foregoing, we and our designees will have the right to remove any User Content that violates this EULA or is deemed by 550 Madison, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content.
6. General Practices Regarding Use and Storage. You acknowledge that we may establish general practices and limits concerning use of the App, including without limitation the maximum period of time that data or other content will be retained by the App and the maximum storage space that will be allotted on our or our third-party service providers’ servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded on the App. You acknowledge that we reserve the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
7. Termination. This EULA shall remain in effect until terminated in accordance with its terms. We may suspend or terminate this EULA and your access to and use of the App at any time and for any reason, with or without cause and with or without notice. Upon the termination of this EULA for any reason, (a) your license to access and use the App shall immediately and automatically terminate, and (b) you shall cease all access to and use of the App. You agree and acknowledge that we are not liable for any termination or suspension of this EULA.
8. Enforcement. You agree that we have the right to (a) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates this EULA, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the App or visitors, occupants, and guests present at the Property, or could create any liability for 550 Madison; (b) disclose your identity or other information about you to any third party who claims that material posted or uploaded by you violates their rights, including their intellectual property rights or their right to privacy; or (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the App. Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting or uploading materials (including, but not limited to, User Content) on or through the App. YOU WAIVE AND HOLD HARMLESS 550 MADISON AND ITS AFFILIATES AND OUR AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES. Please note, however, that as we do not undertake to pre-screen User Content before it is posted or uploaded to the App, we cannot ensure prompt removal of objectionable material after it has been posted or uploaded. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
9. User/Third-Party Disputes. You agree that you are solely responsible for your interactions with any other user or third-party business in connection with the App and we shall have no liability or responsibility with respect thereto.
III. User Obligations.
2. Use of the Oasis 550 Madison Fitness and Wellness App. You are responsible for ensuring that only you access and use the App in accordance with this EULA, and that you do not make unauthorized use of the App. You agree to comply with all applicable laws, rules, and regulations when using the App. You will not use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You shall be solely responsible for (a) the security and confidentiality of any username or password granted to you to access the App, and you shall use your best efforts to maintain the confidentiality of your username and password; and (b) any authorized or unauthorized access to the App using your username and password, and any actions taken thereunder, including, but not limited to, any non-authorized user’s failure to comply with the terms of this EULA. The owner of the App is based in the State of New York in the United States. We provide this App for use only by persons located in the United States who are permitted by legitimate invitation to purchase and use the services located at or provided by the Oasis Fitness Center. You acknowledge that access to the App outside of the United States may not be legal or accessible by, or appropriate for, certain persons or entities or in certain non-U.S. jurisdictions. If you access the App from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
3. Mobile Services. The App includes certain services that are available via a mobile device, including the ability to (a) upload content to the App via a mobile device, (b) browse the App from a mobile device, and (c) access certain features through the App downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the App through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
4. Updates. We may from time to time, in our sole discretion, develop and provide updates to the App, which may include upgrades, bug fixes, patches, corrections, enhancements, improvements, and/or new functionality and features (collectively, “Updates”). Updates may also discontinue or suspend, temporarily or permanently, or modify or delete in their entirety, certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. All Updates will be deemed part of the App and be subject to all terms and conditions of this EULA. You agree that we will not be liable to you or to any third party for any update, modification, deletion, suspension or discontinuance in connection with any Updates.
IV. Features and Functionality.
1. In addition to any other features and functionality made available through the App, the following features and functionality may be made available by us to you as an end user directly or through Third-Party Materials:
a.) Membership Signups and Packages. You may purchase various membership options and purchase credits for classes and training sessions at the Oasis Fitness Center. Membership Signups and Packages are subject to the “Fees, Refunds, and Price Changes” section below and any other terms and conditions that govern your use of the Oasis Fitness Center and related services.
b.) Classes, Events and Meditation Pods. You may reserve a spot or join a waitlist for a spot in a fitness or wellness class or one of our meditation pods. We do not guarantee the availability of these classes, events, or pods for your use.
c.) Third-Party Amenities. You may request or book certain services from third parties, such as personal training and wellness services (each a “Third-Party Provider”), to the extent they are available at the Property, including, but not limited to, personal training, physical therapy, and massage therapy. You will be contracting directly with the Third-Party Provider for such services and not us, and you will be responsible for paying the Third-Party Provider directly. You, and not us, will be solely responsible for (i) any applicable correspondence with the Third-Party Provider, (iii) updating, rescheduling or cancelling your service appointment, as needed, and (iv) providing any specific instructions regarding your service appointment. We will not be liable for any claims, losses, liabilities, damages, costs or expenses attributable to the service appointment or the Third-Party Provider. We are not responsible for the performance of any services by any Third-Party Providers.
d.) Storage. Where you have access to store belongings at the Property (including, but not limited to, articles of clothing and other personal effects), as available, the App may enable you to make reservations or other arrangements for such storage. We will not be responsible for any items that you store or leave at the Property.
e.) Health Questionnaire/Health Checks. We may require that you complete a health questionnaire before you participate in activities at or otherwise run by the Oasis Fitness Center. If you fail to complete the health questionnaire or if based on your responses to the health questionnaire or other health checks imposed by 550 Madison, its property manager, Property personnel, and/or Oasis Fitness Center staff, trainers, or Third-Party Providers deem you not to be fit to enter, or receive services at or run by, the Oasis Fitness Center (in their sole discretion), your access to the Oasis Fitness Center may be restricted, suspended, or denied. We will not be responsible or liable for any actions or omissions taken in response to such health questionnaire or other health checks.
f.) Fees; Refunds; Price Changes. To the extent any services are made available through the App in exchange for the payment of a fee, you will be required to provide information regarding your credit card or other payment card (each, a “Payment Method”). You represent and warrant to us that such information is true and accurate, and that you are authorized to use the Payment Method that you have selected. You will promptly update your account information with any changes that may occur regarding your Payment Method (for example, a change in billing address or expiration date). You agree to pay the amount that is specified, in accordance with this EULA. The payments you have made are final and non-refundable, unless we determine otherwise in our sole discretion. You hereby authorize us to bill your Payment Method in advance in accordance with the terms specified by us at the time of billing, and you further agree to pay any charges so incurred. In our sole discretion, we may offer credits or refunds on a case-by-case basis, for example in the event of an error in the amount you were charged. We reserve the right to change our prices. If we change our prices, we will provide notice of the change in the App or in email to you, at our option, before the change takes effect.
V. WARRANTY DISCLAIMERS & LIMITATION OF LIABILITY.
1. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA, THE APP AND ANY OF THE RIGHTS LICENSED TO YOU HEREUNDER ARE PROVIDED BY US “AS IS.” YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF ANY PRODUCT OR SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION, USE OF, AND RESULTS OBTAINED FROM THE APP. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, INTERFERENCE, AND PERFORMANCE.
WE MAKE NO WARRANTY THAT (I) THE APP WILL MEET YOUR REQUIREMENTS, (II) THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (III) THE INFORMATION OR CONTENT PROVIDED THROUGH THE APP WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY, (IV) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP WILL BE ACCURATE, RELIABLE OR COMPLETE, OR WILL PROPERLY ADDRESS ANY HEALTH AND/OR SAFETY CONCERNS OR (V) THE QUALITY OR SUITABILITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE APP WILL MEET YOUR EXPECTATIONS. NEITHER 550 MADISON NOR ITS AFFILIATES AND ITS AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APP (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY OTHER TENANTS OF THE PROPERTY). NEITHER 550 MADISON NOR ITS AFFILIATES AND ITS AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS WARRANT THAT THE APP IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. WE AND OUR AFFILIATES AND OUR AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE THROUGH USE OF THE APP, INCLUDING ANY LIABILITY FOR DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED IN CONNECTION WITH USE OF OR RELIANCE ON ANY INFORMATION OR CONTENT PROVIDED THROUGH THE APP. TO THE EXTENT THAT THE APP (INCLUDING ANY THIRD-PARTY SERVICE MADE AVAILABLE THEREIN) CONNECTS YOU TO A THIRD-PARTY SERVICE FOR THE PURPOSES OF PROVIDING OR OBTAINING SERVICES HEREUNDER, WE WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD-PARTY SERVICE PROVIDER AND YOU EXPRESSLY WAIVE AND RELEASE US FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY, INCLUDING YOUR ACTS OR OMISSIONS UNDER ANY AGREEMENT BETWEEN YOU AND SUCH THIRD PARTY.
2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL WE or our AFFILIATES AND OUR AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY LEGAL THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES, OR INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, REVENUES, PROFITS, OR GOODWILL, LOSS OF DATA, LOSS OF PRIVACY, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS EULA OR THE APP, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE APP, DELAYS, INTERRUPTION, LOSS OR CORRUPTION OF DATA, BREACHES IN SECURITY, SYSTEM INCOMPATIBILITY, LOSS RESULTING FROM SYSTEM OR SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN, REGARDLESS WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE AND EVEN IF WE WERE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL NOT BE LIABLE TO ANY PERSON OR ENTITY FOR ANY (A) ERROR IN THE APP OR ANY DATA, INFORMATION, OR SERVICES INCLUDED OR INCORPORATED THEREIN OR OTHERWISE MADE A PART THEREOF, (B) ACT OR OMISSION BY ANY USER OF THE APP, (C) NON-COMPLIANCE WITH ANY LAW, RULE OR REGULATION BY ANY USER OF THE APP, (D) THIRD-PARTY MATERIALS, OR (E) CONTENT. IN THE EVENT THAT 550 MADISON IS FOUND LIABLE FOR DIRECT DAMAGES, IN NO EVENT SHALL OUR TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS ($100.00). REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. We shall have no liability for any delay in or failure of the App, or any other losses or damages caused by any disruption or slow speed of the Internet, break-downs of security, or introduction of computer viruses (and the like), malware, or ransomware introduced by third parties, any labor dispute, cyber incident, attack or hack, government requirement, act of God, epidemic, pandemic, disease, or any other cause beyond our reasonable control.
THE FOREGOING PARAGRAPH SHALL NOT APPLY TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, WE AND OUR AFFILIATES AND OUR AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP, OR ANY MATERIALS STORED THEREIN UNLESS SUCH DAMAGES OR INJURIES ARE THE RESULT OF OUR NEGLIGENT, FRAUDULENT OR RECKLESS ACTS OR INTENTIONAL MISCONDUCT.
3. Apple-Enabled Software: In addition to the other terms and conditions set forth in this EULA, when you download the App for use in connection with an Apple-branded product, the following terms and conditions also apply:
550 Madison and you each acknowledge that this EULA has been entered into between 550 Madison and you only, and not with Apple Inc. (“Apple”), and that as between 550 Madison and Apple, 550 Madison, not Apple, is solely responsible for the App and the content on it.
If there is a conflict between this EULA and the Apple App Store Terms of Service (“the Apple Terms”), the Apple Terms will apply.
Your license to use the App is limited to a non-transferable license to use the App on an Apple-branded product that you own or control, as permitted by the Usage Rules set forth in the Apple Terms.
We are giving you personally the right to use the App and to do so as set out above. You are not permitted to transfer the App to someone else, whether for money or any other thing of value, or for free. If you sell any device on which the App is installed, you first must remove the App. You must keep all passwords secure and not provide this information to anyone else.
If you need support, please contact us, not Apple. Apple has no obligation to provide any maintenance or support services with respect to the App.
Apple is not responsible for any product warranties, whether express or implied by law, and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty.
550 Madison and you acknowledge that 550 Madison, not Apple, is responsible for addressing any claims that you or any third party have relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
In the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between 550 Madison and Apple, 550 Madison, not Apple, will be 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.
You must comply with applicable third-party terms of agreement when using the App.
550 Madison and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA, and that, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you.
4. Google-Sourced Software: The following applies when you download the App from the Google Play Store: (i) you acknowledge that this EULA is between you and 550 Madison only, and not with Google, Inc. (“Google”); (ii) your use of the App must comply with Google’s then-current Google Play Terms of Service; (iii) Google is only a provider of Google Play where you obtained the App; (iv) 550 Madison, and not Google, is responsible for the App; (v) Google has no obligation or liability to you with respect to the App or this EULA; and (vi) you acknowledge and agree that Google is a third-party beneficiary of this EULA.
IV. Intellectual Property Rights.
1. Intellectual Property Rights. “550,” “550 Madison,” “550 Madison Fitness and Wellness,” “Oasis Fitness and Wellness,” “Oasis Fitness,” “Oasis Wellness,” and all related names, logos, product and service names, designs, and slogans are trademarks and service marks of 550 Madison or its affiliates or licensors. You must not use such marks without the prior written permission of 550 Madison. All other names, logos, product and service names, designs, and slogans on the App are the trademarks of their respective owners. You will not infringe on the intellectual property rights of 550 Madison or any third party in connection with your access to and use of the App. You shall use your best efforts to ensure that all Confidential Information and our intellectual property rights are kept secure and protected from unauthorized access or disclosure. You shall not delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the App. As between us and you, we retain and shall retain all right, title, interest to, and ownership of the App and all intellectual property rights therein. The limited license granted to you per Section II.1 above does not transfer title or any other interest in or to the App or any of our intellectual property rights therein, and you hereby disclaim any right, title, and interest that you may have or gain therein. Nothing in this EULA should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of our intellectual property displayed on the App without our prior written permission in each instance. All goodwill generated from the use of intellectual property on the App will inure to our exclusive benefit.
2. To the extent any intellectual property rights in the App might, for any reason, otherwise vest in you, you hereby unconditionally and irrevocably assign to 550 Madison all such intellectual property rights. You shall not contest or aid in contesting the ownership or validity of our intellectual property rights or any applications or registrations relating thereto.
3. License Granted to 550 Madison. You hereby grant 550 Madison a perpetual, royalty-free, non-exclusive, worldwide, transferable, and sublicensable license to access and use the User Content for any legal purpose related to the App, including the provision of services by us. You are and will remain the sole and exclusive owner of all right, title, and interest in and to the User Content, including all intellectual property rights relating thereto to the extent there are any such intellectual property rights. Subject to the license granted herein, we will not take any actions or engage in conduct inconsistent with your ownership of the User Content. YOU HEREBY REPRESENT, WARRANT, AND CERTIFY THAT YOU (A)(I) ARE THE SOLE OWNER OF THE USER CONTENT, AND/OR (II) HAVE BEEN GRANTED PERMISSION OR ARE OTHERWISE AUTHORIZED BY THE APPLICABLE OWNER(S) OF THE USER CONTENT, AND (B) YOU ARE NOT VIOLATING THE RIGHTS OF ANY THIRD PARTIES BY UPLOADING SUCH USER CONTENT TO THE APP.
4. Confidential Information. As a result of your access to the App, you will have access to certain Confidential Information of 550 Madison. You shall maintain the secrecy of all such Confidential Information disclosed to you. You shall not use, disclose, or otherwise exploit any Confidential Information for any purpose not specifically authorized pursuant to this EULA; provided that, you may produce information solely to the extent necessary to comply with any law, court, or administrative order. You shall use your best efforts to give us reasonable prior written notice to the extent possible and permitted by law that such Confidential Information is being sought by a third party so as to afford us the opportunity to limit, challenge, or prevent such disclosure. All files, lists, records, documents, documentation, materials, specifications, equipment, and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted, or destroyed by you promptly upon termination of this EULA. “Confidential Information” means all confidential, proprietary, and/or nonpublic information of any kind, whether written or oral, relating to 550 Madison’s business or operations, specifically including, without limitation: (a) all nonpublic information concerning the business, technology, the App, services, internal structure, and strategies of 550 Madison, specifically including, without limitation, software, product development, product and services pricing, product maintenance, source or object code, materials, documentation, our intellectual property rights, proposals, designs, concepts, methodologies, inventions, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information, or licensing policies; and (b) any other information clearly labeled by us in writing as “confidential” prior to its disclosure, otherwise deemed as Confidential Information under this EULA or which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment under the circumstances. Notwithstanding the foregoing, “Confidential Information” shall exclude information that is: (i) available to the public other than by a breach of this EULA; (ii) rightfully received from a third party not in breach of a contractual, fiduciary, or other obligation of confidentiality; or (iii) known to you at the time of disclosure as evidenced by your written records at the time of disclosure.
5. Feedback. If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to us, whether by letter, email, telephone, or otherwise (“Feedback”), all such submissions are made on a non-confidential basis and we have no obligation to review, consider, or implement such Feedback, and you shall grant herewith to 550 Madison an exclusive, transferable, worldwide, royalty-free, fully-paid-up license (including the right to sublicense) to use, reproduce, modify, disclose, and otherwise exploit such Feedback as we may determine in our sole discretion without any compensation or attribution. You waive and agree not to assert any so-called “moral rights” you may have in the Feedback, and you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
VII. Indemnification by You. You shall indemnify, hold harmless and, at 550 Madison’s option, defend 550 Madison and its affiliates and our and their officers, employees, directors, shareholders, licensors, service providers, and agents from and against any and all claims, suits, actions, arbitrations, proceedings, costs, liabilities, losses, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs, resulting from, arising out of, or related to (a) a breach or alleged breach by you of this EULA, (b) your use, misuse, or failure to lawfully use the App, (c) your infringement or misappropriation of any intellectual property rights of 550 Madison, or any third party, (d) any violation by you of any law, regulation, or rule, including, without limitation, privacy laws, in connection with your use of the App, or (e) any content.
VIII. Dispute Resolution By Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
1. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this EULA as the “Arbitration Agreement.” You and 550 Madison agree that any and all disputes or claims that have arisen or may arise between you and us, whether arising out of or relating to this EULA (including any alleged breach thereof), the App, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration before a neutral arbitrator, rather than in a court by a judge or jury, in accordance with the terms of this Arbitration Agreement, except that you or we may (but are not required to) assert individual claims in small claims court, if such claims are within the scope of such court’s jurisdiction (as explained further below). Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this EULA, you and we are each waiving the right to a trial by jury or to participate in a class action. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
2. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US 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 ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE (WHERE EITHER OR BOTH ARE A PARTY TO AN ASSERTED CLAIM) AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
3. Pre-Arbitration Dispute Resolution. We are always interested in resolving disputes amicably and efficiently if there is an opportunity to do so informally. Before an arbitration (or suit in small claims court, if available) is commenced, you or we agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a dispute informally. Both parties recognize this is an important requirement, and that breach of this requirement would be a material breach of this EULA. To provide this opportunity, before commencing any arbitration (or suit in small claims court, if available), each party agrees to send to the other party a written notice of dispute (“Notice”). The Notice to 550 Madison shall be sent to 550 Madison Avenue, 34th Floor, New York, New York 10022 Attention: Legal, with a copy to OALegal@Olayangroup.com. The Notice to you shall be sent to the email address we have on file for your App account (each, a “Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute in sufficient detail to evaluate the merits of the claiming party’s claim and for the other party to determine if an amicable resolution is possible and (ii) set forth the specific relief sought, including the amount of money (if any) that is demanded and the means by which the demanding party calculated the claimed amount. Both parties agree that they will attempt to resolve a dispute through an information negotiation within sixty (60) calendar days from the date the Notice is received. If the claim is not resolved within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. Each party agrees that the state and federal courts in the City and County of New York may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
4. Arbitration Procedures. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules in effect at the time that such arbitration is initiated (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this EULA as a court would. Except as set forth above, all issues are for the arbitrator to decide, including, but not limited to, threshold issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement and issues relating to (a) whether the terms of this EULA (or any aspect thereof) are enforceable, unconscionable, or illusory and (b) any defense to arbitration, including waiver, delay, laches, or estoppel. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this EULA and applicable law. While an arbitrator may award declaratory or injunctive relief, the arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect on any other claim or dispute. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any arbitration hearings will take place in New York, New York, at another mutually agreeable location or, if both parties agree, by telephone or video conference. Whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or by a hearing will be determined in accordance with the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
5. Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a dispute in a local small claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the dispute heard in small claims court. At that time, the AAA will close the arbitration and the dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
6. Appeals. Arbitration awards are enforceable like any court order, but are subject to very limited review by a court.
7. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, we will pay your portion of such fees, subject to allocation in the arbitrator’s award. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
8. Confidentiality. Each of the parties shall maintain the strictly confidential nature of the arbitration, including all aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by law.
9. Opt Out. You may reject this Arbitration Agreement, in which case only a court may be used to resolve any dispute. To reject this provision, you must send us an opt-out notice (the “Opt Out”) within thirty (30) days after you create an App account or we first provide you with the right to reject this Arbitration Agreement. The Opt Out must be sent to the 550 Madison Notice Address. The Opt Out must include your name, phone number and the email address(es) you used to sign up and use the App. This is the only way of opting out of this Arbitration Agreement. Opting out will not affect any other aspect of this EULA, and will have no effect on any other or future agreements you may reach to arbitrate with us.
10. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the Section 2) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this EULA will continue to apply.
11. Future Changes to Arbitration Agreement. Notwithstanding any provision in this EULA to the contrary, we agree that if we make any future change to this Arbitration Agreement (other than a change to a Notice Address) while you are a user of the App, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this EULA (or accepted any subsequent changes to this EULA).
IX. General Provisions.
1. Entire Agreement; Waiver; Severability; Survival. This EULA constitutes the entire agreement of the parties with respect to your access to and use of the App and supersedes all prior agreements between you and us, both oral and written, with respect to your access to and use of the App. No failure to exercise, and no delay in exercising, on the part of 550 Madison, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. If any term or provision of this EULA shall be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this EULA shall remain in full force and effect, and such invalid, illegal, or unenforceable term or provision shall be deemed not to be part of this EULA. All representations, warranties, covenants, agreements, disclaimers, and limitations made in this EULA shall survive your acceptance of this EULA and any termination of this EULA.
2. Governing law, Venue, Waiver of Jury Trial; Injunctive Relief. This EULA shall be governed by and construed in accordance with the Federal Arbitration Act and the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this EULA or the App not subject to arbitration, as set forth above, shall be instituted exclusively in the federal and state courts located in New York, New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. You hereby irrevocably and unconditionally waive any right you may have to a trial by jury in respect of any action or proceeding arising out of or relating to this Agreement that is not subject to arbitration, as set forth above. You agree that any breach of this EULA will cause us irreparable injury and damage. You expressly agree that we shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which we might be entitled.
3. Use of these Terms. A printed version of this EULA and of any notice given in electronic form will be admissible in arbitral, judicial, or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
4. Assignment; Binding Effect. You may not assign this EULA without our express prior written consent, which may be withheld in our sole discretion. Any attempted or purported assignment without such consent shall be null and void, and will automatically terminate your right to use the App. We may assign this EULA and our rights and obligations under this EULA without your consent.
5. Questions and Comments. All questions, complaints, claims, and communications regarding this EULA or the App should be sent to:
OAC 550 OWNER LLC
Property Management Office
550 Madison Avenue
New York, New York 10022