Terms of Service and Privacy Agreement
Welcome to XOMBO!
XOMBO SOFTWARE, INC. (“XOMBO”) designs products and tools that help you achieve your health and fitness goals and empower and inspire you to lead a healthier, more active life. These Terms of Service (the “Terms of Service”) apply to your access and use of XOMBO. XOMBO includes our software, as well as associated firmware, applications, devices, websites, APIs, products and services (the “XOMBO Service”).
These Terms of Service are an agreement between you and XOMBO, a Canadian company with its registered address at:
XOMBO SOFTWARE, INC.
877-2785 Commercial Drive
Vancouver, V5N 4C5
You must accept these Terms of Service to create a XOMBO account or to access and/or use the XOMBO Service.
You accept these Terms of Service by clicking “Accept” below, by creating a XOMBO account or by using any part of the XOMBO Service. If you do not accept these Terms of Service, do not create an account or use the XOMBO Service.
We hope that you enjoy using our program as much as we have enjoyed developing it. Please make sure that you review and understand each of the terms in these Terms of Service before you start using the XOMBO Service.
Prohibited Uses of the XOMBO Service
If you are under the age of 13, or any higher minimum age in the jurisdiction where you reside, you are not permitted to access or use the XOMBO Service unless your parent has consented in accordance with applicable law. Additionally, you cannot access or use the XOMBO Service if you are barred from receiving services under applicable law or have been suspended or removed from the XOMBO Service. XOMBO may, in its absolute and sole discretion, prohibit you from using the XOMBO Service and may terminate any agreement with you in respect of the XOMBO Service.
Under no circumstances shall any unauthorized use be made of XOMBO, the XOMBO name, logo, service or methods, for a fee or otherwise.
Creating an Account
Full use of the XOMBO Service requires that you create an account by providing us with information including, but not limited to, your full name, proof of age, a valid email address, and a strong password. You are responsible for all activity that occurs in association with your account.
XOMBO is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
Please contact email@example.com immediately if you discover or suspect any security breach related to the XOMBO Service or your account.
Full use of the XOMBO Service is dependent upon your use of a computer with adequate software or a supported mobile device and internet access. The maintenance and security of this equipment may influence the performance of the XOMBO Service and it is your responsibility to ensure the equipment’s functionality.
You are also responsible for any and all Internet, data, SMS, or access charges which may result from your use of XOMBO. Please check with your service provider(s) for information on possible data, SMS, or other usage charges.
These Terms of Service govern the use of XOMBO generally, including, but not limited to, the use of the XOMBO Service by anyone (“Users”), the actions of XOMBO account holders (“Account Holders”) and the actions of XOMBO. You may not, under any circumstances, use the XOMBO Service, either directly or indirectly, or use, operate, or maintain a XOMBO account, either directly or indirectly, without complying with these Terms of Service.
Unless stated otherwise in these Terms of Service, the terms and conditions contained herein will remain in force indefinitely.
Changes to terms
XOMBO reserves the right to change, modify or amend these Terms of Service, or other agreements between XOMBO and Users or Account Holders, at any time and without notice to anyone. It is the responsibility of Users and Account Holders to review these Terms of Service from time to time.
CONDUCT AND COMMUNITY STANDARDS
XOMBO reserves the right, in its sole and absolute discretion, to cancel or suspend any Account Holders account and to prohibit anyone from using the XOMBO Service, either directly or indirectly, for any reason whatsoever.
While XOMBO may restrict or prohibit the use of the XOMBO Service at its discretion, the following conduct on the part of Users and Account Holders will not be tolerated:
The unauthorized collection, storage, use, disclosure or destruction of any personal information that is used in the XOMBO Service;
The unauthorized collection, storage, use, disclosure or destruction of any intellectual property that is used in the XOMBO Service;
Unauthorized sharing, disseminating or providing private, confidential or other sensitive information on XOMBO including, but not limited to, user medical information;
Bullying, harassing, threatening or otherwise inappropriate behaviour towards anyone, including Users, Account Holders and XOMBO staff;
Sharing, either publicly or privately, any inappropriate content on XOMBO including, but not limited to, pornographic, violent or otherwise unacceptable content; and/or
Contravening any applicable laws in your use of XOMBO including, but not limited to, the laws of Canada and British Columbia, or any local, state or principal or federal laws which shall apply to your use of XOMBO.
Content License and Waiver of Moral Rights
XOMBO may enable you to post, upload, store, share, send, or display photos, images, video, data, text, music, exercise regimens, food logs, recipes, comments, your likeness or likenesses, and other information and content (“Your Content”) to and via the XOMBO Service. You are responsible for Your Content that you post to the XOMBO Service and continue to be responsible for Your Content as it remains on or available through XOMBO. By making Your Content available on or through the XOMBO Service you hereby grant to XOMBO a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works or arrangements from, and distribute Your Content, in whole or in part, including your name and likeness, in any media or form whatsoever. Said rights are granted to us solely for the purpose of offering, maintaining, and improving the XOMBO Service.
By agreeing to these Terms of Service, you agree that you are hereby waiving any and all moral rights you may have had, do have, or may ever have in regard to Your Content.
Authority to Grant
You are solely and absolutely responsible for Your Content. You represent and warrant that you own Your Content or that you have all of the rights necessary to grant us a license to use Your Content as described in these Terms of Service.
Use of Content
You represent and warrant that Your Content, the use and provision of Your Content on the XOMBO Service, and your use of the XOMBO Service will not
- infringe, misappropriate, or violate a third-party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy;
- violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- be fraudulent, false, misleading, or deceptive;
- be defamatory, obscene, pornographic, vulgar, or offensive;
- promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
- be violent or threatening or promote violence or actions that are threatening to any person or entity; or
- promote illegal or harmful activities or substances.
You further agree not to
- upload any content, intentionally or unintentionally, that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content;
- use or attempt to use another user’s account without authorization, or impersonate any person or entity;
- harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications;
- post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes any criminal or otherwise illegal activity; or
- use the XOMBO Service in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the XOMBO Service, or which may expose us or our users to any harm or liability of any type.
XOMBO may, in its absolute and sole discretion, alter, remove, or refuse to display or provide any of Your Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying Your Content to and via the XOMBO Service.
XOMBO Content and Waiver of Moral Rights
“XOMBO Content” includes any photos, images, graphics, video, audio, data, text, music, exercise regimens, food logs, recipes, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through XOMBO Service. XOMBO Content, the XOMBO Service, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of Canada, the United States, and foreign countries. We reserve all rights not expressly set forth in these Terms of Service.
You agree not to use, remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the XOMBO Service without express written authorization from XOMBO. Our logos and any other XOMBO Content that may appear on the XOMBO Service, and the overall look and feel of the XOMBO Service, including page headers, graphics, icons and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the XOMBO Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
You understand and agree that by agreeing to these Terms of Service, XOMBO, or its designee, shall be the sole and exclusive owner of any XOMBO Content.
Permitted use of XOMBO Content
XOMBO may be used as a tool for personal trainers, physicians, or other health advisors of yours who you have authorized to receive information of yours through the XOMBO Service (“Authorized Advisors”). Authorized Advisors are permitted to use the XOMBO logo and the associated promotional materials solely for the purpose of advertising that they use the XOMBO Service in their personal fitness business. The XOMBO logo and associated promotional materials must not be used in a way that is deceptive or misleading. Under no circumstances shall anyone use XOMBO Content in a way that may reasonably indicate that the user is employed by, working for, or a representative of XOMBO.
From time to time the XOMBO Service may be used to publicly post pictures, data, information, documents, and other content. While XOMBO reserves the right to modify or remove content that has been posted on the XOMBO Service, XOMBO does not publish or control any content posted by Users and is not responsible for any content posted on the XOMBO Service. Users should know that they are personally and absolutely responsible for any content that they post on the XOMBO Service.
XOMBO does not employ, work, or engage in contracts of services with Authorized Advisors for the purposes of assisting Users. Authorized Advisors may utilize the XOMBO Service as a tool for assisting Users.
Users must procure their own contract or arrangement with an Authorized Advisor. XOMBO is not, in any way, responsible for providing or maintaining your relationship with an Authorized Advisor. XOMBO is also not responsible for any loss, damage, injury suffered by your or your Authorized Advisor.
Users are strongly encouraged to conduct background checks and due diligence on and concerning a prospective Authorized Advisor before they begin utilizing their services. XOMBO is not responsible in any way for anything including, but not limited to, transactions, advice, consultation, or business that occurs between a User and their Authorized Advisor.
PAYMENT AND FINANCIAL TRANSACTIONS
XOMBO Services are provided for based upon the service description and fees listed on our website.
Your Subscription is subject to taxes and tariffs in applicable jurisdictions, which may include the jurisdiction in which you conduct business or operate the XOMBO Service.
You are required to pay the Subscription using a credit card or another online payment method as provided for within the application.
Your Subscription may vary, for example, with monthly or annual automatic renewal terms (a “Subscription Term”), as described in the course of your transaction. Unless you cancel your Subscription or your Subscription is cancelled or suspended by XOMBO, your Subscription will automatically renew for additional Subscription Terms. Rates are subject to change from time to time. Unless otherwise indicated by us, you will be charged prior to or at the beginning of each Subscription Term. Before charging you for a Subscription Term, we will notify you of the applicable fees. If the Subscription Term has been automatically renewed, you will be charged at the rate in effect for the service being provided at the time of the renewal.
You may cancel your Subscription at any time. Your cancellation will take effect at the end of the Subscription Term in which the cancellation was made. In the event that you cancel your Subscription, we may still send you promotional communications about XOMBO, unless you opt-out of receiving said communications by following the unsubscribe instructions provided in the communications.
When you cancel a Subscription, you cancel only future charges for your Subscription. You will not receive a refund for the current Subscription Term, but you will continue to have full access to that Subscription until the end of the Subscription Term in which the cancellation was made. At any time for any reason, XOMBO may provide a refund, discount, or other consideration (“Credits”) to some or all of our users in our sole and absolute discretion. The amount and form of such Credits, and the decision to provide them, are at XOMBO’s sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us to provide Credits in the future.
Use of XOMBO Services
Any Subscriptions are personal to you and may only be used by you and all settings, privacy controls or opt-ins are specific to the user. A user Subscription may not be used by any other person other than the subscriber, nor may a user make his or her XOMBO account publicly available. You agree that you will not allow anyone else to use your Subscription, and that you will not transfer any Subscription or disclose your password to any other person. You will report to XOMBO any unauthorized or prohibited use of your Subscription, and agree that you will reset your XOMBO password immediately.
XOMBO allows you and Authorized Advisors to utilize your personal health information to create more effective diets, workout regimes, and personal health plans. To achieve this, XOMBO collects and compiles your personal health information and shares it with you and your Authorized Advisor.
You consent to XOMBO collecting, using, storing, and sharing your personal information with your Authorized Advisor for the purposes of allowing you and your Authorized Advisor to create more effective diets, workout regimes, and personal health plans.
While XOMBO is committed to empowering each of its Users to lead a healthier, more active lifestyle, XOMBO is also committed to improving the health and well-being of populations, generally. To achieve this, XOMBO may use personal health information of yours at times for the purposes of medical research and may share personal health information of yours with bodies and organizations for the purposes of medical research. By agreeing to these Terms of Service, you agree to such use.
Unless otherwise required by law, any personal information of yours that is shared with anyone other than you or your Authorized Advisor will be completely anonymized or in a form which does not in any way identify you, personally. By agreeing to these Terms of Service, you agree to such sharing of your information.
You consent to XOMBO collecting, using, storing, and sharing your personal information with bodies and organizations for the purposes of medical research and use to improve, determine, and assess the effectiveness of the XOMBO Service and associated tools, in which case such information will be completely anonymized.
Collection and Use
Any information that you provide to XOMBO, directly or indirectly, may be used by XOMBO and its agents, for the purposes of collecting, compiling, and sharing your personal health information with you and your Authorized Advisor to create more effective diets, workout regimes, and personal health plans.
By agreeing to these Terms of Service, you agree that your data and information may, in anonymized form, be obtained and disclosed to third parties and used by third parties for statistical, research, product/service improvement, and IT purposes (IT purposes will include, but not be limited to, assessing the effectiveness of the programs available through XOMBO, the means by which XOMBO is delivered, technological aspects of the platform, and the like).
Any information that you provide to XOMBO, directly or indirectly, that has been anonymized and which is not capable of identifying you may be used by XOMBO for the purposes of research and product and/or service improvements.
By agreeing to these Terms of Service, you agree to such collection and use.
Revocation of Consent
At any time and for any reason, you may revoke your consent to permit XOMBO to collect, store, and/or use any personal health information which can be attributable to you or identified to be yours.
Upon your request, XOMBO will also destroy any personally identifiable information of yours that it has in its possession or control.
You understand and agree that on your revocation of consent, XOMBO may not be able to, and will not have any obligation to, remove, delete or otherwise deal with any data or information which may have been obtained from or provided by you XOMBO in an anonymous or non-identifiable form.
Take-Down on Death
In the event that, upon taking reasonable steps to confirm that a user has died, XOMBO shall be entitled to remove a user profile from XOMBO. In all circumstances, however, XOMBO shall be entitled to retain any and all information, data, or records necessary to comply with any and all laws relating to data and records retention, taxation, limitation, or other laws.
REPRESENTATIONS AND WARRANTIES
Consult your Doctor
The XOMBO Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a heart or any medical or psychological condition, consult your doctor before using the XOMBO Service, engaging in an exercise program, or changing your diet. If you experience a medical emergency, stop using the XOMBO Service immediately and consult with a medical professional. XOMBO is not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through or use in conjunction with the XOMBO Service. If you engage in any exercise program you receive or learn about through XOMBO Service, you agree that you do so at your own risk and are voluntarily participating in these activities.
Not a medical device
Our goal is to provide helpful and accurate information on the XOMBO Service, but we make no endorsement, representation, or warranty of any kind about any XOMBO Content, information, or services. The accuracy of the data collected and presented through the XOMBO Service is not intended to match or be similar to any medical device or scientific measurement device.
We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the XOMBO Service nor is XOMBO in any way certifying, confirming, guaranteeing, or in any way responsible for any service, advice, opinion, or information provided by an Authorized Advisor.
XOMBO is intended to be used with the assistance of an Authorized Advisor. The use of XOMBO is not to be undertaken without the assistance of a trained medical and/or personal training professional.
XOMBO Content and the XOMBO Service may change from time to time or vary by geographic location. Data, including but not limited to data relating to your current location, may be unavailable, inaccurate, or incomplete.
Use of the XOMBO Service should not replace your good judgment and common sense.
LIMITATION OF LIABILITY
If you rely on or use any XOMBO Content or the XOMBO Service, you do so solely at your own risk.
XOMBO is not in any way responsible or liable to you for any loss, damage, or injury that may arise, wholly or in part, from your reliance on or use of the XOMBO Content or the XOMBO Service, including but not limited to any medical, psychological, emotional, or other symptoms, effects, conditions, or affects which may arise as a result or in any way related to your use of XOMBO.
What is a cookie?
A cookie is a small piece of data that a website asks your browser or application to store on your computer or mobile device. The cookie allows the website to "remember" your actions or preferences over time.
Most Internet browsers support cookies. However, users can set their browsers to decline certain types of cookies or specific cookies. Further, users can delete cookies at any time.
Cookies and ad technology such as web beacons, pixels, and anonymous ad network tags help us serve relevant ads to you more effectively. They also help us collect aggregated audit data, research, and performance reporting for advertisers. Pixels enable us to understand and improve the delivery of ads to you and know when certain ads have been shown to you. Since your web browser may request advertisements and web beacons directly from ad network servers, these networks can view, edit, or set their own cookies, just as if you had requested a web page from their site.
We may use aggregate data from third parties to show you relevant, interest-based advertising. However, we do not provide any personal information that we collect to advertisers. You can opt-out of off-site and third-party-informed advertising by adjusting your cookie settings. Opting-out will not remove advertising from the pages you visit, but, instead, opting-out will result in the ads you see not being matched to your interests. This means that the ad(s) you see will not be matched to your interests by those specific cookies.
Use of Third-Party Cookies
Rejecting and/or Deleting Cookies
You agree to defend, indemnify and hold harmless XOMBO and its owners, directors, employees, contractors, agents, and affiliates harmless against any and all:
Medical, psychological, emotional, or other symptoms, effects, conditions, or affects which may arise as a result or in any way related to your use of XOMBO; and
Any and all claims, actions, proceedings, losses, damages, expenses, and costs (including, without limitation, court costs and reasonable actual legal fees) arising out of or in connection with your use of the XOMBO Service (including us taking any action in relation to the XOMBO Service at your direction).
Except as otherwise required by applicable law, these Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the Province of British Columbia without regard to its conflict of laws principles.
We want to address your concerns without needing a formal legal proceeding.
Before commencing a legal claim against XOMBO, you agree to try to resolve the dispute informally by submitting your concern to firstname.lastname@example.org. We will try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or XOMBO may bring a formal proceeding.
Should you or XOMBO you choose to resolve a dispute by bringing a formal proceeding against the other, you and XOMBO agree to resolve said disputes through final and binding arbitration. It is in XOMBO’s sole and absolute discretion to choose who will preside as arbitrator over any disputes between you and XOMBO.
For support or assistance regarding XOMBO, please contact email@example.com.
Any formal notice or other communication, or writing required or permitted to be provided to XOMBO under these Terms of Service or for the purposes of dispute resolution under these Terms of Service must be provided in writing and will be sufficiently given if delivered personally or transmitted by registered mail, verified courier (with signature) or verified facsimile transmission (with original to follow by mail) to:
XOMBO SOFTWARE, INC.
877-2785 Commercial Drive
Vancouver, V5N 4C5
If any term contained in these Terms of Service is determined to be void, invalid or unenforceable, in whole or in part for any reason whatsoever, it shall not be deemed to affect or impair the validity or enforceability of any other term contained in these Terms of Service and shall be treated as severable from the remainder of these Terms of Service.
The headings used in these Terms of Service are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Notice of Agreement to Terms of Service
By clicking or in any way proceeding through the “Accept” function in XOMBO, creating a XOMBO account, or by using any part of the XOMBO Service, you accept these Terms of Service and acknowledge that you have had the opportunity to review the terms and conditions contained in these Terms of Service and you agree to be bound by each and every term and condition in these Terms of Service.