EASTNINE STUDIOS LIMITED
TERMS AND CONDITIONS OF MEMBERSHIP
Effective Date: 8th February 2018
This Membership Agreement and Terms of Service (this “Membership Agreement”) is a binding contract between you, an individual user (“you”) and Eastnine Studios Limited (“Eastnine,” “we,” “us” or “our”) governing your use of the mobile software applications that Eastnine makes available for download (individually and collectively, the “App”), the related website located at eastnine.fit and any other online properties owned or controlled by or on behalf of Eastnine (collectively with the App, the “Service”).
Eastnine Studios Limited is a company registered in the United Kingdom, with its registered address at 9th Floor, 107 Cheapside, London, EC2V 6DN.
By installing or otherwise accessing or using the service, you agree that you have read, understood, and agree to be bound by this membership agreement. If you do not agree to the terms of this membership agreement, then you should not use the service.
As provided in greater detail in this Membership Agreement (and without limiting the express language of this Membership Agreement), you acknowledge the following:
the Service is licensed, not sold, to you, and you may use the Service only as set forth in this Membership Agreement;
you use the Service at your sole risk, and you will seek the advice of a suitably qualified medical professional before beginning to use the Service;
the use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility; and your selected , preferred music provider who retains the licence for use of the music with the relevant record labels, publishers and individual musicians and writers;
we provide the App to you on an “as is” basis without warranties of any kind and Eastnine’s liability to you is limited;
disputes arising between you and Eastnine will be resolved by the English Courts;
1. General Terms and Conditions
a. Changes to this Membership Agreement
You understand and agree that we may change this Membership Agreement at any time without prior notice. The revised Membership Agreement will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised Membership Agreement. If you find any change to this Membership Agreement or the Service unacceptable, then your sole remedy is to stop accessing, browsing, and otherwise using the Service.
c. Jurisdictional Issues
The Service is controlled and operated by Eastnine from its offices in London, United Kingdom. Eastnine makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United Kingdom. Those who choose to access or use the Service from locations outside the United Kingdom do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorised, or penalised is strictly prohibited.
The service is not for persons under the age of 18 or for any users previously suspended or removed from the service by Eastnine. If you are under 18 years of age, you must not use or access the service at any time or in any manner. By accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorised to use the Service by your parent or legal guardian who is at least 18 years of age.
2. The Service
The Service provides you with the opportunity to take coaching sessions (each, a “Session”) and receiving coaching from trainers solely for your personal use. Coaching sessions are available for a variety of skill levels, specifically for running training and development, and for varying durations. Not all coaching sessions will be available in perpetuity and coaching sessions are subject to change at any time with or without notice and without any liability to you. People respond differently to exercise, and so we are unable to guarantee that you will see any change in your health, fitness, strength, ability, size or weight as a result of doing the exercises suggested to you through the Service. We will not be responsible to you if you do not achieve your exercise or fitness goals through using the Service.
b. Mobile Services
The Service will be accessible through the Eastnine application available for download on your mobile phone, tablet, or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
3. Registration and Onboarding
a. Log-In Credentials
In order to enjoy the full benefits of the Service, you must download the Eastnine mobile application (the "App") on your device and register an account with us using your e-mail address (an “Account”).
b. Account Security
You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You may not share the credentials for your Account with any third party. Please notify Eastnine immediately at email@example.com if you suspect or know of any unauthorised use of your log-in credentials or any other breach of security with respect to your Account. Eastnine will not be liable for any loss or damage arising from unauthorised use of your credentials prior to you notifying Eastnine of such unauthorised use or loss of your credentials.
c. Accuracy of Information
When creating an Account, you will provide true, accurate, current, and complete information to Eastnine. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this Membership Agreement, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Eastnine, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Eastnine may terminate your Account immediately without notice and without any liability.
4. Subscriptions and Payment
a. Free Trials
We offer a free trial of the Service whilst in Beta mode, after you have downloaded the App, created your Account, and agreed to start your initial trial (the "Trial Period"). During the Trial Period, we will not charge you any fees for using the Service. When we transform the App from Beta mode, we will provide appropriate communications for any potential pricing. We will notify you, at the company’s discretion, with the termination date of your Trial Period.
Your confirmation of this Membership Agreement is a confirmation that you accept all terms for any further and subsequent use of this Service.
b. Fees and payment
Whilst in Beta mode, this Service is currently free in your Trial Period. With any introduction of payment terms to enjoy the full benefits of the Service, including coaching sessions, you must purchase a subscription to the Service. You will be charged the stated subscription fee and any applicable taxes and service fees upon enrolment, unless your membership starts with a free trial, as detailed in 4a above.
After the end of the Trial Period, we will charge you a regular fee in advance for using the Service, as provided to you when you create an Account and subscribe for the Service (the "Fee"). When you create your Account, you will need to select the length of your initial subscription (the "Subscription Period"). You authorise us to charge the applicable Fee for the selected Subscription Period to the Apple App Store account linked to your device. You confirm that you have the right to use the relevant account to make purchases on your device.
Once your initial Subscription Period expires, your subscription will automatically renew for a further Subscription Period and we will charge you the applicable Fee for that Subscription Period. If you do not want to renew your subscription, you will need to tell us at least 24 hours before the next Subscription Period begins through the appropriate settings on your device or Apple App Store account.
If your Eastnine membership starts with a free trial period, the duration of which is specified during enrolment, we will bill your designated payment method for the subscription fee at the end of the Free Trial period, unless you cancel at least 48 hours prior to the end of the Free Trial period.
You may cancel your subscription to the Service at any time, after which Eastnine will not automatically renew your subscription. Please Note That No Refunds Will Be Issued Upon Cancellation. Please contact firstname.lastname@example.org to cancel your subscription. If you purchased your subscription via Apple In-App Purchase, if you wish to cancel please contact Apple directly via http://reportaproblem.apple.com/. Apple will refund your subscription fee in full in accordance with their policies. Alternatively, you can get in touch with us via email@example.com and we will give you instructions on how to contact Apple.
d. No Refunds
Payments Are Non-refundable. There Are No Refunds Or Credits For Partially Used Periods. You are only eligible to cancel your subscription without incurring any payment obligation during your free trial period (if any), after which no refunds will be issued.Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.
At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion.
e. Price Changes
Sometimes, we will change the prices for the paid services. If we increase the prices for the paid services during your subscription term and your subscription will renew at the increased price, we will notify you 30 days before the increased price goes into effect. If you do not cancel your subscription before the increased price goes into effect, you must pay us the increased price for the paid service. At the end of any promotion, Eastnine may, at its sole discretion, revert a member’s price per period to the current standard retail pricing for that membership type. Eastnine may also discontinue certain pricing promotions at any time at its sole discretion.
5. Intellectual Property Rights
Subject to your complete and ongoing compliance with this Agreement, Eastnine hereby grants you a personal, limited, revocable, non-transferable licence to access and use the Service solely for your personal, non-commercial use. Eastnine reserves all rights not expressly granted to you.
Except for User Content, the content that Eastnine provides to end users on or through the Service, including without limitation, any Session (including the programming of such Session), text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Eastnine or its third party licensors (collectively, the “Eastnine Content”).
You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities.
Your use of Eastnine Content must be in compliance with applicable law. Eastnine reserves all rights on the part of its licensors; members are not permitted to infringe the rights of the copyright owners of the sound recordings included on the Service or any musical works embodied therein (collectively “Music”).
Coaching sessions are offered for individual use only by a single member per Account and members are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights for the Music used with any coaching session. The unauthorised reproduction or distribution of the Music is expressly prohibited any may violated applicable law and subject to liability for copyright infringement.
Eastnine trademarks, service marks, and logos (the “Eastnine Trademarks”) used and displayed on the Service are Eastnine’s registered and unregistered trademarks or service marks. You may not use any Trademarks as part of a link to or from the Service without Eastnine’s prior express written consent. You may not remove any Trademarks identifying the ownership or origin of any Eastnine Content. All goodwill generated from the use of any Eastnine Trademark will inure solely to Eastnine’s benefit.
6. User Content
“User Content” means any content that Members upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments and other works subject to protection under the laws of England or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all Eastnine Content.
b. Screening User Content
Eastnine offers Members the ability to submit User Content to or transmit User Content through the Service. Eastnine does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. Eastnine does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will Eastnine be liable in any way for any User Content.
c. Licenses to User Content
While you retain ownership of any rights you may have in your User Content, you hereby grant Eastnine an unrestricted, assignable, sublicensable, royalty-free licence throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “ Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of:
(i) advertising, marketing, and promoting Eastnine and the Service;
(ii) displaying and sharing your User Content to other users of the Service; and
(iii) providing the Service as authorised by this Membership Agreement.
You further grant Eastnine a royalty-free licence to use your user name, image, voice, and likeness to identify you as the source of any of your User Content. Any User Content posted by you to or through the Service or transmitted to Eastnine will be considered non-confidential and non-proprietary, and treated as such by Eastnine, and may be used by Eastnine in accordance with this Membership Agreement without notice to you and without any liability to Eastnine.
d. You Must Have Rights to the Content You Post
You represent and warrant that:
(i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this Membership Agreement;
(ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content;
(iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and
(iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of your Posting your User Content on the Service.
e. Waiver of Rights to User Content
By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
f. Objectionable Content
You agree not to Post any User Content to the Service that is or could be interpreted to be:
(i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libellous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or
(ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide) (collectively, “Objectionable Content”).
The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this Membership Agreement may be raised as a defence against such third party claims. If you encounter any Objectionable Content on the Service, then please immediately email firstname.lastname@example.org. Eastnine in its sole discretion may take any actions it deems necessary and/or appropriate against any Member who Posts Objectionable Content on the Service.
7. Restrictions on Use of the Service
a. In addition to any other restrictions set forth in this Membership Agreement, and without limiting those restrictions, when using the Service, you agree not to: make unauthorised copies or derivative works of any content made available on or through the Service; use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service; delete or alter any material Eastnine or any other person or entity Posts on the Service; frame or link to any of the materials or information available on the Service; alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available; use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Eastnine or obtained from the Service; provide any false personal information to Eastnine; create a new account with Eastnine, without Eastnine’s express written consent, if Eastnine has previously disabled an account of yours; solicit or collect personal information from other Users; disclose personal information about a third person on the Service or obtained from the Service without the consent of that person; use the Service to send emails or other communications to persons who have requested that you not send them communications; use the Service, without Eastnine’s express written consent, for any commercial or unauthorised purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming; or violate any applicable laws or regulations or the terms of this Membership Agreement.
8. External Sites
The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). Eastnine does not endorse any External Sites or the content made available on such External Sites. Eastnine is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You agree that Eastnine will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites.
While we are continually working to develop and evaluate our own product ideas and features, we invite your feedback, comments, and suggestions. If you choose to contribute by sending Eastnine any ideas (“Feedback”), then regardless of what your accompanying communication may say, the following terms will apply. Accordingly, by sending Feedback to Eastnine, you agree that:
a. Eastnine has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Eastnine is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Eastnine perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
a. Respect of Third Party Rights
Eastnine respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Members to do the same.
b. Repeat Infringer Policy
Eastnine’s intellectual property policy is to:
(i) remove or disable access to material that Eastnine believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and
(ii) remove any User Content uploaded to the Service by “repeat infringers.” Eastnine considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Eastnine has received more than two takedown notices compliant with the prevailing legal provisions at the time of infringement of such User Content or Feedback. Eastnine has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Eastnine’s own determination.
c. Procedure for Reporting Claimed Infringement
If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Copyright Protection Officer, in Section 10.d below. Your Notification of Claimed Infringement may be shared by Eastnine with the Member alleged to have infringed a right you own or control, and you hereby consent to Eastnine making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorised to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. Identification of the specific 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 Eastnine to locate the material;
iv. Information reasonably sufficient to permit Eastnine to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorised 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 authorised to act on behalf of the owner of an exclusive right that is allegedly infringed.
d. Copyright Protection Officer Contact Information
Eastnine’s designated agent for receipt of Notifications of Claimed Infringement can be contacted at:
(i) E-mail: copyright@Eastnine.fit
(ii) UK Royal Mail: Eastnine Studios Limited, 9th Floor, 107 Cheapside, London EC2V 6DN
e. Counter Notification
If you receive a notification from Eastnine that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Eastnine with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Eastnine’s Designated Agent through one of the methods identified in Section 10.d and include substantially the following information:
i. A physical or electronic signature of the Member;
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. The subscriber’s name, address, and telephone number, and a statement that the Member consents to the jurisdiction of the courts of England, and that the subscriber will accept service of process from the person who provided notification under Section 10.d above or an agent of such person.
f. Reposting of Content Subject to a Counter Notification
If you submit a Counter Notification to Eastnine in response to a Notification of Claimed Infringement, then Eastnine will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Eastnine will replace the removed User Content or Feedback or cease disabling access to it within 10 business days, and Eastnine will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Eastnine’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Eastnine’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications
The Copyright Act 1988 provides that:
i. any person who knowingly materially misrepresents under the Copyright, Designs and Patents Act 1988
ii. material or activity is infringing, or
iii. that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Eastnine] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. We refer Members to the relevant sections of the Copyright, Designs and Patents Act 1988.
Eastnine reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution
You and Eastnine agree that any dispute arising out of or in any way related to this Membership Agreement or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Membership Agreement, will be resolved by exclusive jurisdiction of the English Courts.
Notwithstanding Section 11.a above, nothing in this Membership Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to:
(i) bring an individual action in small claims court;
(ii) pursue an enforcement action through the applicable law if that action is available;
(iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or
(iv) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Eastnine will be governed by the Arbitration Act 1996 (AA 1996), as modified by this Membership Agreement, and will be administered by the International Chamber of Commerce or London Court of International Arbitration as appropriate. The AA 1996 Rules and filing forms are available online at www.legislation.gov.uk/ukpga/1996/23/contents. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice and Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by UK Royal Mail (“Notice”). Eastnine’s address for Notice is: Eastnine Studios Limited, 9th Floor, 107 Cheapside, London EC2V 6DN, Attn: General Counsel. The Notice must:
(i) describe the nature and basis of the claim or dispute; and
(ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Eastnine may commence an arbitration proceeding.
e. No Session Actions
You and eastnine agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Eastnine agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
f. Modifications to this Arbitration Provision
Except as otherwise provided in this Membership Agreement, if Eastnine makes any future change to this arbitration provision, other than a change to Eastnine’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Eastnine’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Eastnine.
If Section 11.f above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
12. Physical Activity Disclaimer
If you have any medical conditions or are thinking about starting an exercise program or engaging in strenuous or unusual physical activity, you agree to consult your doctor first. Without limitation of any other terms in this Membership Agreement, we do not make any representations or warranties that the app is intended to and/or does diagnose, treat, cure, or prevent any allergies or other medical disorders or conditions, and you hereby acknowledge this disclaimer and that we are not engaged in providing you with a medical device, medical advice and/or healthcare services by providing you with access to the App. We are not responsible in any way for any health problems or injuries, including, without limitation, incapacity or death, which may result from or be related to your use of or inability to use the App. If at any time during your workout you do not feel well, you should stop immediately and, if required, seek medical advice from a medical professional.
The Service offers guidance on completing exercises safely and effectively. However, you are responsible for ensuring that you do the exercises in accordance with the guidance we provide to you, and for otherwise ensuring that you do any exercises safely. We will not be responsible for any injuries that you cause to yourself or others if you fail to follow the guidance provided on the Service or otherwise act negligently when doing the exercises in the workout plan provided to you by Eastnine.
13. Our liability/responsibility to you
a. While we will do our best to ensure that the App itself is of a reasonable standard and quality and matches any descriptions we have provided you, the App and any other portion of the Service may contain some content owned or developed by third parties. As we do not own or produce such third party content, we cannot be responsible for it in any way.
b. In addition, due to the nature of the Internet and technology, the Service is unfortunately provided on an "as available" and "as is" basis. This means that we are unable to promise that your use of the Service will be uninterrupted, without delays, error-free or meet your expectations and we do not give any commitment relating to the performance or availability of the Service in these Terms and Conditions and, to the extent we are able to do so, we exclude any commitments that may be implied by law.
c. In the event of a claim arising out of the provision of the Service, our responsibility to you will never be more than the amount you have paid us in the 12 months prior to the claim arising and, in the event that you have not paid us any money, we shall have no responsibility whatsoever to you.
d. In every case, we will never be responsible for any loss or damage that is not reasonably foreseeable.
e. The above does not affect your rights under the applicable law of the country in which you are resident, including our responsibility to you for any personal injury or death caused by our negligence.
14. Third Party Disputes
a. To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the service, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party, and you irrevocably release the Eastnine parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
b. The owners of any content licensed to Eastnine for use on the Service are intended beneficiaries of this Membership Agreement and shall have the right to enforce this Membership Agreement against you for any unauthorised use of their content in any court of competent jurisdiction. The provisions of Section 11 do not apply to any dispute between you and a third party licensor of content to Eastnine.
15. Term and Termination of the Membership Agreement
As between you and Eastnine, the Term of this Membership Agreement commences as of your first use of the Service and continues until the termination of this Membership Agreement by either you or Eastnine.
If at any time you do not feel that you can agree to these Terms and Conditions or any changes made to these Terms and Conditions or the Service, you must immediately stop using the Service. Deleting the App might not close any Account you have created in relation to the Service. You must notify us if you wish to close your Account by sending written notification to Eastnine at email@example.com and terminating all other uses of the Service. We will end your use of the Service and close your Account at the end of the Subscription Period in which you notify us that you would like to close your Account and stop using the Service, provided that you tell us at 24 hours before the then current Subscription Period expires. You can do this through the appropriate settings on your device or Apple App Store account. Eastnine reserves the right, in its sole discretion, to restrict, suspend, or terminate this Membership Agreement and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this Membership Agreement. Eastnine may further terminate this Membership Agreement for any other reason upon ten (10) days’ notice to you using the email address associated with your account credentials. Eastnine reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Sections 1, 3.b, 5.b, 5.c, 6.d, 6.e, 6.f, 7, 9 – 11, 15 - 19 and all defined terms used therein will survive the termination of this Membership Agreement indefinitely.
This Membership Agreement is governed by the laws of England without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the courts in England.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Eastnine as a result of this Membership Agreement or use of the Service.
You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Eastnine other than pursuant to this Membership Agreement.
If any provision of this Membership Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Membership Agreement, which will remain in full force and effect. Failure of Eastnine to act on or enforce any provision of this Membership Agreement will not be construed as a waiver of that provision or any other provision in this Membership Agreement. No waiver will be effective against Eastnine unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Eastnine and you, this Membership Agreement constitutes the entire agreement between you and Eastnine with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.
The Section headings are provided merely for convenience and will not be given any legal import. This Membership Agreement will inure to the benefit of our successors and assigns. You may not assign this Membership Agreement or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Eastnine. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App and any Eastnine Content from your device prior to such disposition. Eastnine may assign this Membership Agreement, including all its rights hereunder, without restriction.
17. Contact Us
You may contact us in connection with your use of the Service by mail at Eastnine Studios Limited, 9th Floor, 107 Cheapside, London EC2V 6DN, and by email at firstname.lastname@example.org.
18. Open Source Software
The App contains certain open source software. Each item of open source software is subject to its own applicable license terms.
19. Apple App Store Provisions
This paragraph 19 applies where the App has been downloaded from the Apple App Store. You acknowledge and agree that these Terms and Conditions are solely between you and Eastnine, not Apple, Inc. ("Apple") and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and Conditions and any law applicable to Eastnine as provider of the App.
You acknowledge that Apple is not responsible for addressing any claims of you or any third party 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 or similar legislation; and all such claims are governed solely by these Terms and Conditions and any law applicable to Eastnine as provider of the software.
You acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Eastnine, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and Conditions.
You represent and warrant that:
(i) you are not located in a country that is subject to 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 and Eastnine acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms and Conditions as relates to your licence of the App, and that, upon your acceptance of the terms and conditions of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions as relates to your licence of the App against you as a third-party beneficiary thereof.