Terms & Conditions of Use

1. Your Acceptance of These Terms

 

Welcome to Vizer Inc. (“Vizer”), (collectively, including all software, content and functionality available through the Vizer Inc. mobile application (“App”) and any website operated by Vizer Inc. (“Website”).

 

These Terms & Conditions of Use (”Terms”) apply to Vizer Inc., ("Vizer," "We," "Us," or "Our") with respect to your ("Your," "You," or "User") rights and obligations in connection with your access and use of the domain, related service domains, website and mobile application (collectively, “Service “ or "Services") or in connection with third party services. By accessing or using the Services, You acknowledge that You have read these Terms, and agree to be bound by the terms and conditions described herein.

 

A. By using, downloading and/or visiting this Website and/or App, You signify Your agreement to (1) these terms and conditions (the "Terms") and (2) Vizer’s privacy notice, found at: Vizer Privacy Policy and incorporated into these Terms by reference. If You do not agree to any of these Terms, including the Vizer privacy notice, please do not download, install or use the Vizer App or Vizer Website.

 

B. Although We may attempt to notify You when major changes are made to these Terms, You should periodically review the most up-to-date version at the Website. Vizer may, in its sole discretion, modify or revise these Terms and policies at any time, and You agree to be bound by such modifications or revisions by Your continued use of the Website and/or App, with respect to the Terms in effect at the time of Your use and after You have the opportunity to review and accept the revised Terms. Nothing in this Agreement will be deemed to confer any third-party rights or benefits. Vizer retains ownership of the Vizer App and Vizer Website at all times.

 

C. The App includes features that promote physical activity. Consider the risks involved and consult with your medical professional before engaging in any physical activity. Vizer is not responsible or liable for any injuries or damages you may sustain that result from Your use of, of inability to use, the features of the App.

 

D. Vizer may modify or update these Terms from time to time. Updates and modifications will be posted to Our website http://www.vizerapp.com and on the Vizer App. If We make significant changes to these Terms, we may elect to inform registered users by email, however We do not undertake to do so. Therefore, You agree to review these Terms on the Vizer App or Vizer Website from time to time to keep informed of any such modification or update. Upon such a modification or update to these Terms, by continuing to use the Vizer App or any Vizer Website, You agree to be bound by such modification or update.

 

E. Vizer reserves the right to change or discontinue, or restrict or block access to, any aspect of the Website or App at any time. Although We generally intend for the Website and App to be available 24/7, it will not be available during maintenance, changes and outages and may not be available for other reasons.

 

F. Vizer cannot guarantee availability of the Website or App to any User.

 

2. Licenses for Use of Vizer Website and App

 

A. Vizer grants You a non-exclusive, non-transferable, revocable license to do the following in accordance with these Terms (the “Licenses”):

 

(i) Download, install and use the Vizer App, and any updates to it provided by Vizer from time to time, in object code for, for Your personal use only on a compatible mobile device owned or controlled by You; and

 

(ii) Access and browse the Vizer Website for Your personal use only.

 

B. Vizer may terminate the Licenses granted under these Terms at any time in its absolute discretion with or without notice to you. If You breach any provision of these Terms, such Licenses shall automatically terminate. Where any of the Licenses are terminated, you agree to immediately cease using and accessing the Vizer Website and Vizer App and to delete any copies of the Vizer App held by You.

 

3. Vizer Marketplace

 

A. The Vizer App enables providers to offer goods, services and other benefits to Users (“Providers”) that may be redeemed by the exchange of earned points (as defined below), such functionality being the “Vizer Marketplace.”

 

B. The Vizer App facilitates donations from Vizer sponsors on behalf of Users who have reached their activity challenge goal and completed the donation in-app. Each completed donation in-app becomes the equivalent contribution, which is sent from a donation sponsor Provider to a participating non-profit, who then completes the community distribution of the good or service. Vizer guarantees that each verifiable User donation earned is sent to the applicable non-profit entity. For every one dollar ($1) donated by a donation sponsor Provider, the applicable non-profit entity receiving the donated funds will provide a minimum number of meals to various local and national food banks, with meal costs varying for each non-profit entity partner. In the case of Feeding America, each one dollar ($1) donated by a donation sponsor Provider helps provide at least 10 meals on behalf of local member food banks.

 

C. Where You use the Vizer Marketplace to offer or redeem goods, services or other benefits in exchange for Points, any such transaction is entered into directly between You and the legal entity making available the relevant goods, services or other benefits to You or redeeming such goods, services or other benefits from You, as applicable. Without limiting the effect of these Terms in any way, transactions taking place on the Vizer Marketplace are subject to the legal terms of the party offering the relevant goods, services or other benefits on the Vizer Marketplace (including as stated in the actual listing), and We and our affiliates are not party to any such transactions.

 

D. You agree that Vizer is not responsible for any goods, services or other benefits offered by You or by any third-party Provider on the Vizer Marketplace. You agree that we have no control over and do not guarantee the quality, safety or legality of any goods, services or other benefits offered by Providers, the truth or accuracy of their offers, the ability of Providers to provide any goods, services or other benefits offered, or that a Provider will actually complete or perform a transaction. Except as otherwise expressly agreed with You, We and Our affiliates do not act as agent, contractor, partner or any form of representative of You or any other User of the Vizer Marketplace. Our operation of the Vizer Marketplace should not be taken as an endorsement (express or implied) of any goods, services or other benefits offered on it, nor of any User.

 

E. Vizer is entitled to alter the selection of goods, services and other benefits offered, and the number of Points required to redeem any such goods, services or other benefits offered, on the Vizer Marketplace, as well as to limit the number of possible redemptions of any good, service or other benefit by any User or group of Users in its absolute discretion. Where We wish to do this, We will notify you first and give you the opportunity to de-list the relevant goods, services or other benefits, if you do not agree with the revised number of Points required.

 

F. You agree that We may remove any listing or offer on the Vizer Marketplace at any time in our absolute discretion. All goods, services and other benefits listed on the Vizer Marketplace are offered subject to their availability (which may be limited where stated on the listing) and the applicable terms and conditions of the Provider listing the relevant offer, and may be withdrawn at any time before they are duly redeemed. Particular goods, services or benefits may be offered via the Vizer Marketplace only to specific categories of Users or to individually selected Users, where We agree in writing or make available the necessary functionality to facilitate this.

 

G. We welcome feedback on Vizer Marketplace participants. In the event that We determine, in our absolute discretion, that any fraud has occurred or any Provider has breached these Terms or refused or failed to honor an offer of goods, services or any other benefit it has listed on the Vizer Marketplace that has been duly redeemed by a User using the requisite number of Points and in accordance with any applicable Terms, We reserve the right in our absolute discretion to (i) reallocate Points to reimburse any aggrieved User where We deem this appropriate, and (ii) suspend or terminate the use of the Vizer App by any User or Provider.

 

H. You agree that We and our affiliates are not responsible to facilitate or offer returns, exchanges or refunds in connection with transactions on the Vizer Marketplace that We have not participated in.

 

I. We make no representation, warranty or undertaking that the offer, sale purchase, export, import or use of any goods, services or other benefits offered on the Vizer Marketplace is valid and legal under the laws that apply to You. You accept sole responsibility to ensure the legality of any offer, sale, purchase, export, import or use of any goods, services or other benefits that You list or redeem using the Vizer Marketplace.

 

J. As a form of Vizer Marketplace curation, Vizer may offer an option for the Users to report an offer via Vizer App functionality and reserves a right after a review to de-list the offer from the Vizer Marketplace.

 

K. You understand and acknowledge that Vizer is not responsible for the availability, accuracy, and delivery of donations from Vizer distributors on behalf of Users. Vizer is only responsible for facilitating contributions from Vizer sponsors on behalf of users to Vizer distribution partners. Vizer makes no guarantee and assumes no responsibility on behalf of its distributors regarding distribution, only that contributions are sent to distribution partners to facilitate the distribution of the goods or services.

 

4. Points

 

A. Users are eligible to collect units of exchange (“Points”) generated by achieving specific goals through verified physical movement (e.g. steps) and subsequent meal donations. Points may be used to redeem products, services and other benefits via the App, to the extent that such products, services and other benefits are offered and available. You acknowledge and agree that Points may not be redeemed for cash from Vizer or any of its affiliates, unless Vizer provides express written authorization otherwise. Vizer guarantees that Points will be earned for all physical movement goals achieved by Users only if required actions are taken in-app, such as clicking the donate button in-app to earn the point after the User completes his/her goal. However, Points may be subject to certain limitations and are not always redeemable. While Vizer strives to work with all of its partners to ensure that Points can be redeemed, Vizer is not liable for any Points that cannot be redeemed due to unavailability or noncooperation of Providers. Additionally, while Points can be earned anywhere, Points can only be redeemed in participating locales where a Vizer Marketplace is established and contains Vizer partnered Providers.

 

B. You acknowledge and agree that the Points redeemed through the Vizer App are a form of digital currency that is only applicable to Vizer and the Vizer Marketplace. Vizer Points are only redeemable through the Vizer App and have no value outside of the Vizer App or in USD currency.

 

C. Points cannot be generated by any other means than by achieving the specified goals through each User’s own personal Vizer account. verified physical movement. Vizer reserves the right to disqualify and destroy any Points that Vizer reasonably believes to have been created by any other means (such as through the improper use of another User’s account) and to suspend or disable any User account used in contravention of these Terms.

 

D. We reserve the right and retain the absolute discretion to determine, and modify from time to time, the eligible forms of movement, movement verification algorithms and amounts of verified movement that must be undertaken by Users in order to generate Points using the Vizer App (for example, and without limitation, we may alter from time to time the verification algorithm or the number of verified physical movement required to generate a Point). Details of eligibility criteria and the quantity of verified movement required to generate Points from time to time are provided within the FAQ section of the App. Physical movement verification conducted by our algorithms is considered final and cannot be revised or reversed.

 

E. Vizer retains the right to limit the maximum amount of Points that Users may generate each day using the App. The applicable limit may vary depending upon the membership level of the relevant User or other criteria that We choose to apply. Vizer reserves the right to modify these limits from time to time at its discretion.

 

F. If You believe that the data tracked on the Vizer activity log is incorrect or mistaken, You agree to bring the issue to Vizer’s attention by reporting the issue through the “Ask For Help” link in the Vizer App menu. Vizer makes no guarantee as to the accuracy of tracking Your activity. Vizer will assess these concerns on a case by case basis and makes no guarantee as to the outcome of its assessment.

 

G. Vizer may implement a freemium model at any time, at its sole discretion, and offer paid subscriptions and fee-based services within the App. While the use of a freemium account is free of charge, premium content and services must be paid for by the User. Vizer’s features are subject to constant development and expansion, therefore Vizer reserves the right to change, delete, add or offer its Users content in a premium subscription from within a freemium model. You acknowledge and agree that You are responsible for the payment of any additional purchases offered within the App.

 

H. From time to time We may offer certain promotional periods to Users. Promotions will have the duration and applicable terms communicated to User at the time the promotion is offered. Promotions may be redeemed as described in the specifics of the promotion and may be subject to additional or different terms. Unless We expressly communicate otherwise, Promotions are not transferable, may not be combined with other offers or redeemed for cash and are void where prohibited. Vizer reserves the right, in its absolute discretion, to determine Your eligibility for a Promotion.

 

5. User Age Restriction

 

A. You affirm that You are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and to abide by and comply with these Terms. The Vizer Website and Vizer App are not intended for use by anyone under 18 years of age. If You are under 18 years of age, then please do not use the Website or App.

 

B. In the event that You intend to redeem eligible Points for goods, services, products or other benefits that contain alcohol, You affirm that You are at least 21 years of age or older, and are able to present proof of age upon redemption of such goods, services, products or other benefits.

 

C. You acknowledge and agree that a Provider that offers the sale of alcohol is required to determine that a patron is of adequate age under current California law to consume alcohol. You agree that You are able to and will provide appropriate and valid identifying documents that include Your name, a photograph, a physical description, Your date of birth, and issued by a governmental agency.

 

D. You acknowledge and agree that the provider of goods, services, products or other benefits that contain alcohol retains the discretion to determine whether a patron meets applicable standards of intoxication and the discretion to decide whether to serve them. Vizer is not responsible or liable for a provider’s independent decision not to serve alcohol to a User. Vizer is not responsible to refund or otherwise exchange any points redeemed for goods, services, products or other benefits containing alcohol, if the redemption is unsuccessful based on the provider’s independent decision not to serve alcohol to a User.

6. Use of the Vizer App

 

A. In order to use the Vizer App, You must create a User account (a “Vizer Account”). You are responsible for all uses of Your Vizer Account whether by You or a third party. You should ensure that You use a strong password for Your Vizer Account and that the details of Your password are kept confidential and secure at all times. To the maximum extent permitted by applicable law, we shall not be liable to You for any unauthorized use of Your Vizer Account resulting from Your failure to maintain restricted access to Your mobile device or Your mobile SIM card, the confidentiality or security of Your user details or failure to use a strong password. Access to Your account can become restricted or outright impossible in case of a loss of Your control over the log-in method to which Your account is registered.

 

B. Your Vizer Account logs details of all points generated by You and any transfers of points to or from Your Vizer Account. Please review Your Vizer Account regularly. If you identify any erroneous transaction or unexpected activity on Your Vizer Account, or You believe that the security of Your Vizer Account has been compromised, You must let us know as soon as possible by contacting us through the “Ask For Help” link in the Vizer App menu. These reports will be assessed by Vizer on a case by case basis. Vizer and makes no guarantee as to the outcome of its assessment.

 

C. When using the Vizer App on Your mobile device, You acknowledge and agree that Vizer operates in the background of Your mobile device, which in turn may have an impact to the battery life of such device.

 

7. Your Email and Responsibilities

 

A. You must provide all hardware and software required to use the Website and App, including but not limited to a computer with Internet access, a current Web browser with cookies enabled, and a valid e-mail address.

 

B. You must provide an email address to register on the App. You agree that information You provide when using the App is true and accurate, and that You will update this information promptly should it change. Failure to provide accurate information is a breach of these Terms. You are solely responsible for the activity that occurs in the course of Your use of the Website and App. You must notify Vizer immediately of any breach of security or unauthorized use. You agree that We may attribute to You all use that occurs in connection with Your email address, and You will be legally bound by the transactions that occur under Your account even if the person using Your email address had no actual authority

 

C. You agree that Your use of the Website App is at Your own risk. Although Vizer will not be liable for Your losses caused by any unauthorized use, You may be liable for the losses of Vizer or others due to such unauthorized use.

 

D. You agree that You will not use the Website or App to impersonate or generate Points on behalf of another individual. You may never use another's email address without permission.

 

E. You agree not to distribute in any medium any part of the Website or App without Vizer’s prior written authorization.

 

F. You agree not to alter or modify any part of the Website or App.

 

G. You agree not to access Vizer’s content through any technology or means other than the explicitly authorized means Vizer may designate.

 

H. You agree not to use the Website or App for any commercial use, without the prior written authorization of Vizer. Prohibited commercial uses include any of the following actions taken without Vizer’s express approval:

 

• sale of access to the Website, App or its related services on another website;

• use of the Website, App or its related services for the primary purpose of gaining advertising or subscription revenue;

• the sale of advertising, on the Website, App or any third-party website, targeted to Vizer content; and

• any use of the Website, App or its related services that Vizer finds, in its sole discretion, to use Vizer’s resources with the effect of competing with or displacing the market for Vizer.

 

I. You agree not to use or launch any automated system, such as "robots," "spiders," or "offline readers," that access the Website or App in a manner that sends numerous request messages to the Vizer servers in a given period of time. Notwithstanding the foregoing, Vizer grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Vizer reserves the right to revoke these exceptions either generally or in specific cases.

 

8. Apple’s Requirements

 

As users of the App Store operated by Apple Inc., We are required to include certain legal terms in our Terms as follows:

 

A. The Terms & Conditions of Use are concluded between You and Vizer, and not with Apple Inc. (“Apple”). The Vizer App and its contents are the responsibility of Us, Our licensors and Users of the Vizer App (to the extent that such Users create, submit or distribute any content via the Vizer App) and not Apple.

 

B. The license to use the Vizer App granted under these Terms is a non-transferable license for You to use the Vizer App on an Apple-branded product that You own or control in accordance with the usage rules set forth in the Apple App Store Terms of Service, except that the Vizer App may be accessed, acquired, and used by other accounts associated with you via any family sharing or volume purchasing agreements with Apple.

 

C. You and We acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Vizer App. We do not offer maintenance or support services in connection with the Vizer App.

 

D. Apple will have no warranty obligation whatsoever with respect to the Vizer App, and any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Vizer App to conform to any applicable warranty set out in these Terms will be solely our responsibility.

 

E. We, not Apple, are responsible for addressing any claims by You or any third party relating to the Vizer App or Your possession and/or use of the Vizer App, including, but not limited to: (i) product liability claims; (ii) any claim that the Vizer App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

 

F. In the event of any third-party claim that the Vizer App or your possession or use of the Vizer App infringes that third party’s intellectual property rights, Vizer and not Apple will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

 

G. 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.

 

H. You may contact Developer at (858) 412-0576, www.vizerapp.com, or dev@vizerapp.com.

 

I. You must comply with any third-party terms that are applicable to the use of the Vizer App from time to time.

 

J. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third-party beneficiary thereof.

 

9. Google Play Requirements

 

As users of the Google Play Android Market operated by Google LLC, We are required to include certain legal terms in our Terms as follows:

 

A. The Terms & Conditions of Use are concluded between You and Vizer, and not with Google LLC (“Google”). The Vizer App and its contents are the responsibility of Us, Our licensors and Users of the Vizer App (to the extent that such Users create, submit or distribute any content via the Vizer App) and not Google.

 

B. The license to use the Vizer App granted under these Terms is a non-transferable license for You to use the Vizer App on an Google-branded product that You own or control in accordance with the usage rules set forth in the Google Play Android Market Terms of Service, except that the Vizer App may be accessed, acquired, and used by other accounts associated with you via any family sharing or volume purchasing agreements with Google.

 

C. You and We acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Vizer App. We, not Google offer maintenance or support services in connection with the Vizer App.

 

D. Google will have no warranty obligation whatsoever with respect to the Vizer App, and any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Vizer App to conform to any applicable warranty set out in these Terms will be solely our responsibility.

 

E. We, not Google, are responsible for addressing any claims by You or any third party relating to the Vizer App or Your possession and/or use of the Vizer App, including, but not limited to: (i) product liability claims; (ii) any claim that the Vizer App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

 

F. In the event of any third-party claim that the Vizer App or your possession or use of the Vizer App infringes that third party’s intellectual property rights, Vizer and not Google will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

 

G. You may contact Developer at (858) 412-0576, www.vizerapp.com, or dev@vizerapp.com.

 

H. You must comply with any third-party terms that are applicable to the use of the Vizer App from time to time.

 

I. Google and Google’s subsidiaries are third party beneficiaries of these Terms, and upon Your acceptance of these Terms, Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third-party beneficiary thereof.

 

10. Physical Activity and Medical Advice Notice

 

A. The App includes features that promote physical activity. You acknowledge and understand that there are potential hazards and risks connected with physical activity. You agree to consider and assume the risks associated with the physical activity performed by Your use of the Vizer App, including, but not limited to injuries, falls, contact with others, field conditions, the potential for paralysis and death, and acts of God, all such risks being known and appreciated by You. Participation beyond Your physical limits and/or accidents may result in serious injury or even death. You agree to defend, indemnify, and hold harmless Vizer against any loss, damage or expense incurred by reason of any claim or liability based upon personal injury (including death) or property damage arising out of the negligent or intentional action by User.

 

B. You hereby certify that there are no health-related reasons or problems that preclude or restrict Your participation in the physical activity and that participation has not been advised otherwise by a qualified medical professional. You understand and acknowledge that it is Your sole responsibility to determine whether You are sufficiently fit and healthy to participate in the physical activity related to the use of the Vizer App.

 

C. The Vizer App allows Users to track and verify their physical movement, generate Points and use Points to redeem goods, Services and other benefits. THE SERVICES WE PROVIDE DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, ANY FORM OF MEDICAL ADVICE OR OPINION. We are not licensed medical professional, and we are not in the business of providing medical advice. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise program. The Vizer App is not a tool for the diagnosis or prevention of disease. We do not endorse any third-party products or services and, where these relate to Your health, you should always obtain appropriate medical advice before using them. YOUR USE OF THE VIZER APP DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND VIZER.

 

11. App and Website Acceptable Use

 

A. In Your use of the Website, You will otherwise comply with the terms and conditions as set forth in these Terms, and all applicable local, national, and international laws and regulations. You also agree that you shall not:

 

• Seek to generate Points by any means other than Your genuine physical movement meeting the eligibility criteria specified by Vizer from time to time and, in particular and without limitation, you shall not (i) simulate any such verified movement using artificial and/or mechanical means, (ii) enlist third parties to generate Points on your behalf (for the avoidance of doubt, however, You may receive transfers of Points from third parties using the functionality available within the App);

• Operate more than one Vizer account;

• Attempt to access any Service or area of the App or Website that You are not authorized to access;

• Copy, adapt, transmit, decompile, disassemble, modify, sell the Vizer App or Vizer Website or any content accessible on either, unless otherwise expressly permitted by these Terms or applicable law;

• Reverse engineer any aspect of the Website or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Website (except as otherwise expressly permitted by law);

• Take any action which might impose a significant burden (as determined by Us) on Website infrastructure, or otherwise interfere with the ordinary operation or mission of the Website;

• Use the Vizer App or Vizer Website in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example by hacking into or inserting malicious code, including viruses, or harmful data, into the Vizer App or Vizer Website;

• Reproduce, frame, display or mirror the Vizer App or Vizer Website other than as a necessary consequence of their normal operation by you;

• Infringe our intellectual property rights or those of any third party in relation to your use of the Vizer App or Vizer Website; • Transmit any material that is defamatory, explicit, offensive or otherwise objectionable on the Vizer App or Vizer Website;

• Use the Vizer App or Vizer Website in a way that could damage, disable, overburden, impair or compromise Vizer systems or security or interfere with other Users;

• Employ any technology that interferes in any way with the proper operation of the Vizer App or Vizer Website, including by blocking any advertising or promotions displayed thereon; or

• Collect or harvest any information or data from the Vizer App or Vizer Website for any commercial purpose, unless Vizer expressly permits otherwise in writing.

• Use the communication systems provided by the Website (e.g. comments, blog or email) for any solicitation purposes. You agree not to solicit, for commercial purposes, any Users of the Website.

 

If We discover any breach of this Section 10 by You, We may immediately suspend or terminate Your access to the App, remove and delete any content from Vizer App and/or Vizer Website violating this Section 10 and report You to the applicable regulatory agency.

 

12. Changes and Updates to the Vizer App and Vizer Website

 

A. Vizer reserves the right at any time, without liability of any kind, in its absolute discretion to: (i) change, suspend, restrict or disable your access to the Vizer App and/or the Vizer Website; and/or (ii) alter the functionality or contents of the Vizer App and/or Vizer Website with or without notice to you.

 

B. We may issue updates to the Vizer App from time to time. Depending upon the nature of the update, You may not be able to continue to use the Vizer App until you have downloaded the latest version of the Vizer App.

 

13. Website Content and Marks

 

A. The content on the Website and App ("Content") and the common law trademarks, service marks and logos included on the Website and App ("Marks"), are owned by or licensed to Vizer, subject to copyright and other intellectual property rights. Content on the Website and App is provided to You “AS IS” for Your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Vizer reserves all rights not expressly granted in and to the Website and App, and the Content.

 

B. You may access Vizer’s Content only as permitted under this Agreement. Vizer reserves all rights not expressly granted in and to the Vizer Content in the Website and App.

 

C. All intellectual property rights and other rights in or to the Vizer App and Vizer Website, and any content of either, made available by or on behalf of Vizer and its licensors, belong to and remain at all times with Vizer and its licensors. Unless expressly set out in these Terms, You shall not obtain (i) any rights in or to our intellectual property rights and other rights in or to the Vizer App or Vizer Website or any contents of either. “Vizer” is the trading name of Vizer and we hold registered and unregistered trade mark rights in respect of this name.

 

D. The Vizer Website and Vizer App are licensed and not sold under these Terms. The only rights granted to You in relation to the Vizer App and Vizer Website under these Terms are the Licenses described in Section 2 of these Terms and no transfer of ownership or right to access or use any source code related to the Vizer App or Vizer Website is granted by us.

 

E. Where You submit any Content whatsoever to the Vizer App or Vizer Website, including without limitation any image, text, or data, You retain all intellectual property rights that You hold in such Content. You grant to Us a non-exclusive, worldwide, royalty-free, transferable, sub-licensable license to use, reproduce, publish, distribute, perform, adapt, amend, enhance and communicate such Content from time to time for any purpose relating to the Vizer App, Vizer Website and our business from time to time.

 

F. Unless expressly permitted by Us in these Terms, You agree not to use, copy or distribute any of the Content, other than as expressly permitted by these Terms. The use, copying or distribution of the Content for commercial purposes is prohibited. You may not copy, distribute, alter, merge, modify, adapt or translate the Website or App. You may not modify the Website or App, or create derivative works based upon the Website or App. You may not sell, rent, lease, or sublicense the Website or App.

 

G. You agree not to circumvent, disable or otherwise interfere with security-related features of the Website and/or App or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website, App or their Content, or attempt to place the Website or App’s systems under unreasonable load.

 

H. You may not access the Website and/or App to develop any software or other technology having the same primary function as the Website or App, including but not limited to using the Website or App in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Website or App.

 

I. For Your convenience, Vizer may include in the Vizer App or Vizer Website links to other sites on the internet that are owned or operated by third parties (“Third Party Websites”). You also agree that Vizer has no control over the content of Third Party Websites and does not have any responsibility for any material available on such Third Party Websites nor for any use of or reliance on the contents of such Third Party Websites by You.

 

J. The Vizer App and Vizer Website may include content submitted by other users of the Vizer App and Vizer Website (Third Party Content). You acknowledge that any us of or reliance on such content by You is entirely at your own risk and We are not responsible for such Third-Party Content.

 

K. The fact that We may link to a Third-Party Website, or display Third Party Content, does not imply that We endorse the site or the products or services on such Third-Party Website or that We have reviewed, approved, or verified the Third-Party Content.

 

L. We welcome any feedback or suggestions for improvements relating to the Vizer App, Vizer Website and/or any related products and services offered by Us from time to time (“Feedback”). Where you provide Feedback to Us You agree that We and Our affiliates shall have a royalty free right to use such Feedback for such purposes as we see fit from time to time, including, without limitation, to create new, or enhance existing product promotion, and we shall not be required to compensate You financially for any such Feedback provided, regardless of how We or Our affiliates use this.

 

14. Termination Policy

 

A. Vizer may terminate Your current or future access to its Website and/or App if Vizer determines that You have breached these Terms (with all other rights of both parties and all other provisions of these Terms surviving any such termination).

 

B. You acknowledge and agree that in the event that Your account is terminated for breach of these Terms, You are not entitled to any refund or exchange of earned Points. Upon breach of these Terms, any accrued Points will be deemed forfeited and cannot be redeemed for cash or other value.

 

15. Notice and Counter-notice for Infringement of the Rights of Others

 

A. Vizer does not condone copyright infringement on its Website or App and will remove allegedly infringing Content if properly notified of the infringement. Vizer reserves the right also to terminate a User's account, if the User is an infringer. If You are a copyright owner and believe that any Content infringes Your copyrighted work, You may submit a notification by providing Our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further information):

 

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

 

• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

 

• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Vizer to locate the material;

 

• Information reasonably sufficient to permit Vizer to contact You, such as an address, telephone number, and, if available, an electronic mail;

 

• A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

 

• A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

• Vizer’s designated contact to receive notifications of claimed infringement is: Samantha Pantazopoulos. Any other feedback, comments, requests for technical support, and other communications should be directed to Vizer’s customer service at hello@vizerapp.com.

 

B. Counter-Notice. If You believe that Your content was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content, You may send a counter-notice containing the following information to hello@vizerapp.com:

 

• Your physical or electronic signature;

• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

• A statement that You have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

• Your name, address, and telephone number, and a statement that You consent to the jurisdiction of the federal District Court for the judicial district in which Your address is located, and that You will accept service of process from the person who provided notification of the alleged infringement.

• If a counter-notice is received by Vizer, Vizer may send a copy of the counter-notice to the original complaining party informing that person that Vizer may replace the removed content or cease disabling it in ten (10) business days. Unless Vizer receives notice within fourteen (14) days that the copyright owner has filed an action seeking a court order against the content provider, member or User, the removed content may be replaced, or access to it restored, at Vizer’s sole discretion.

 

16. Warranty Disclaimers

 

A. YOU AGREE THAT YOUR USE OF THE WEBSITE WILL BE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE” WITHOUT ANY REPRESENTATION, WARRANTY OR UNDERTAKING OF ANY KIND AS TO THE AVAILABILITY, PERFORMANCE, ACCURACY OR COMPLETENESS OF THE VIZER APP, VIZER WEBSITE OR THE CONTENTS OF ANY OF THEM. VIZER DOES NOT WARRANT OR UNDERTAKE THAT USE AND AVAILABILITY OF THE VIZER APP AND VIZER WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE TO THE FULLEST EXTENT PERMITTED BY LAW NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE IN RELATION TO THE VIZER APP OR VIZER WEBSITE. IF THIS EXCLUSION DOES NOT APPLY UNDER APPLICABLE LAW THE LIABILITY OF VIZER IN RELATION TO ANY SUCH WARRANTY SHALL, IN SUCH CASE, BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WEBSITE SHALL CREATE ANY WARRANTY.

 

B. VIZER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE VIZER WEBSITE OR VIZER APP’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO VIZER AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE AND APP, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE AND/OR APP, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE AND/OR APP BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.

 

VIZER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY USER, PROVIDER OR OTHER THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE FEATURED IN ANY BANNER OR OTHER ADVERTISING.

 

C. VIZER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. IN PARTICULAR, VIZER MAKES NO GUARANTEE REGARDING THE AVAILABILITY OF ANY SERVICES PROVIDED BY THE PROVIDERS AND OTHER THIRD PARTIES WHO YOU INTERACT WITH THROUGH THE WEBSITE AND/OR APP SERVICE. IN ADDITION, VIZER HAS NO CONTROL OVER OTHER CHARGES ASSESSED BY PROVIDERS WHO MAKE SERVICES AVAILABLE THROUGH VIZER. ANY DISPUTE YOU MAY HAVE REGARDING THE QUALITY, PERFORMANCE, AVAILABILITY, OR CHARGES ASSOCIATED WITH SERVICES PROVIDED BY THE PROVIDERS OR OTHER THIRD PARTIES SHOULD BE ADDRESSED TO THOSE PARTIES, NOT VIZER.

 

D. VIZER FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

17. Limitation of Liability

 

A. You acknowledge that the Vizer App has not been developed to meet your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the Vizer App meet Your requirements.

 

B. You hereby assume all risk and liability in connection with Your use of the Vizer Website or Vizer App, as the case may be.

 

C. IN NO EVENT WILL VIZER, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIZER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT DIRECT DAMAGES ARE LIMITED TO YOUR ACTUAL DAMAGES, OR THE TOTAL AMOUNT OF THE SERVICES BOOKED, WHICHEVER IS LESS. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT VIZER WILL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

 

D. The Website and App is controlled and offered by Vizer from its facilities in the United States of America. Vizer makes no representations that the Website or App is appropriate or available for use in other locations. Those who access or use the Website or App from other jurisdictions do so at their own volition and are responsible for compliance with local law. You acknowledge that information You submit may be transmitted to third party service providers who may process information in other jurisdictions and further acknowledge that such information may be transmitted to other jurisdictions with data protection laws that are different from those where You live.

 

E. Vizer is not liable for any Points that cannot be redeemed. Vizer only guarantees that Points are earned upon a User’s completion of physical movement goals.

 

18. Indemnity

 

A. You agree to defend, indemnify and hold harmless Vizer, and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Your use of and access to the Website and/or App; (ii) Your violation of any term of these Terms; or (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right. This defense and indemnification obligation will survive these Terms and Your use of the Website or App.

 

B. You hereby agree to indemnify Vizer and defend and hold harmless from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages and losses, including, without limitation, attorney’s fees, resulting from third party claims, suits or actions with respect to a Provider’s offer of goods, services, products or other benefits arising out of Your use of the Vizer App.

 

19. Assignment

 

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned in whole or part by Vizer without restriction.

 

20. Disputes

 

A. For any dispute or claim You have with Vizer relating in any way to Your use of the Vizer App or Vizer Website, or to any products or services sold or distributed in relation to the Vizer App or Vizer Website, You agree to first contact Vizer and attempt to resolve the dispute with Us informally. In the unlikely event that Vizer has not been able to resolve a dispute within thirty (30) days, You agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or breach or alleged breach thereof (collectively, “Claims”), by binding arbitration. Unless You and Vizer decide otherwise, arbitration will be conducted in California. If Your claim is for $10,000 USD or less, Vizer agrees that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the arbitration rules. Each party will be responsible for paying any filing, administrative and arbitrator fees. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for experts and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either party from seeking injunctive or equitable relief from the courts for matters related to intellectual property rights or unauthorized access to the Service.

 

B. To begin an arbitration proceeding, You must send a letter requesting arbitration and describing your claim to our registered agent, A Registered Agent, Inc., at 8 The Green, STE A, Dover, Delaware, 19901. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Vizer will not seek attorney’s fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where You live or at another mutually agreed location.

 

C. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that You or We may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

D. TO THE EXTENT PERMITTED BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS VIZER AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VIZER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

21. Governing Law 

 

A. By using the Vizer App or Vizer Website, You agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between You and Vizer.

 

B. You agree that any claim or dispute between You and Vizer that arises in whole or in part from the Website or App will be decided exclusively by a court of competent jurisdiction located in or otherwise serving San Diego County, California.

 

22. General

 

A. We may assign or transfer our rights and obligations under these Terms to a third party. You are not entitled to assign or otherwise transfer these Terms without our prior written consent. Any attempt to do so without our consent will be void.

 

B. These Terms, together with the Privacy Notice at Vizer Privacy Policy and any other legal notices published by Vizer on the Website and/or App, constitute the entire agreement between You and Vizer concerning the Website and/or App. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. No waiver of any term of this these Terms will be deemed a further or continuing waiver of such term or any other term, and Vizer’s failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.

 

C. YOU AND VIZER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

D. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control. If we fail to insist that You perform any of Your obligations under these Terms, or if we do not enforce our rights against You, or if We delay in doing so, that will not mean that we have waived our rights against You and will not mean that You do not have to comply with those obligations. If we do waive a default by You, we will only do so in writing, and that will not mean that we will automatically waive any later default by You.

 

E. Each of the provisions of these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

 

F. You agree that no part of these Terms shall cease to be in effect if any other part is deemed unenforceable, or otherwise non-applicable.

 

G. Company shall not be liable for any delay in performance under the Agreement caused by any natural disaster, pandemic, epidemic, act of God, or by any other cause beyond its reasonable control.

 

23. Additional Notices

 

A. WE WILL NOT GIVE, SELL, OR OTHERWISE TRANSFER ADDRESSES MAINTAINED BY US TO ANY OTHER PARTY FOR THE PURPOSES OF INITIATING, OR ENABLING OTHERS TO INITIATE, ELECTRONIC MAIL MESSAGES EXCEPT AS AUTHORIZED AS APPROPRIATE BY OUR PERSONNEL OR POLICIES.

 

B. EXCEPT FOR PARTIES AUTHORIZED TO HAVE ADDRESSES MAINTAINED BY US, PERSONS MAY VIOLATE FEDERAL LAW IF THEY: (1) INITIATE THE TRANSMISSION TO OUR COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OF SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.

 

Notice About Our Trademarks: Vizer is a common law trademark of Vizer, Inc. You may not use any of the trademarks displayed on this Website, App or any Content without the express written permission of Vizer. All rights are reserved.

 

Effective Date: 5/19/2020