Terms of Service

These Terms of Service were last updated on December 19, 2020

These G-Train Terms of Service (the “Agreement“) are an agreement between the person visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the G-Train Services (such person, the “Customer“) and Outside Shots LLC. (“G-Train”, G-Train and Customer, the “Parties” and each, a “Party“), and is entered into the earlier of: (a) the date Customer first uses any part of the G-Train Services; and (b) the date Customer agrees to be bound by this Agreement (the “Effective Date“).

G-Train offers a software-as-a-service product and a mobile device software application (the “Application“) that provides access to work-out plans used by top athletes and other related fitness services, as may be changed from time to time by Service Provider and as more fully described on the Website (collectively, the “G-Train Services“).

BY USING THE G-TRAIN SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE G-TRAIN SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO G-TRAIN THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.

Definitions

“G-Train” has the meaning set out in the introductory paragraphs to this Agreement.

“G-Train Software” means G-Train’s software product made available under the name “G-Train”, and any updates provided as part of the G-Train Services.

Customer Data” means any data, information, content, records, and files that Customer loads, receives through, transmits to or enters into the G-Train Services.

Fees” has the meaning set out in Section 7.

Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

Personal Information” means information about an identifiable individual.

Post-Term Period” has the meaning ascribed to it in Section 12(d).

Technical Support Services” means the support services described in Section 7.

Term” has the meaning set out in Section 11(a).

Website” means any websites used by G-Train to provide the G-Train Services, including the website located at https://gtrain.gunnarpeterson.com/.

Usage Data” has the meaning ascribed to it in Section 2(e).

G-Train Services

Provisioning of the G-Train Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, G-Train will make the subscribed G-Train Services available to Customer on the terms and conditions set out in this Agreement.

Restrictions on Use. Customer must not itself, and will not permit others to:

  • sub-license, sell, rent, lend, lease or distribute the G-Train Services or any intellectual property rights therein or otherwise make the G-Train Services available to others; 
  • use the G-Train Services to permit timesharing, service bureau use or commercially exploit the G-Train Services; 
  • use or access the G-Train Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the G-Train Services, or for any purpose or in any manner not expressly permitted in this Agreement;
  •  use the G-Train Services to create, collect, transmit, store, use or process any Customer Data:
  • that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
  • that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
  • that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
  • modify the G-Train Services; reverse engineer, de-compile or disassemble the G-Train Services;
  • remove or obscure any proprietary notices or labels on the G-Train Services, including brand, copyright, trademark and patent or patent pending notices;
  • access or use the G-Train Services for the purpose of building a similar or competitive product or service; 
  • or perform any vulnerability, penetration or similar testing of the G-Train Services;

Suspension of Access; Scheduled Downtime; Modifications. G-Train may, at its discretion:

suspend Customer’s access to or use of the G-Train Services or any component thereof:

  • for scheduled maintenance;
  • if Customer violates any provision of this Agreement; or
  • to address any emergency security concerns; and
  • Modify the G-Train Services.
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Customer is required to accept all patches, bug fixes and updates made by or on behalf of G-Train to the G-Train Services.

Licensed Third Party Technology. The G-Train Services may contain or require the use of Licensed Third Party Technology. Customer will accept and comply with the license terms applicable to Licensed Third Party Technology. Except for Licensed Third Party Technology expressly identified in this Agreement as provided by G-Train, Customer is responsible for separately obtaining or licensing such technology. G-Train reserves the right to modify the functionality of the G-Train Services if Licensed Third Party Technology is no longer available on reasonable terms.

Control Software and Analytics Tools. The G-Train Services also include control software that regularly transmits certain usage data, including but not limited to, licensing, system and service performance data, to G-Train to verify compliance with the terms of this Agreement and to improve G-Train’s products and services. Customer acknowledges that G-Train may use such control software as well as third party web analytics tools (such as Google Analytics) that serve cookies or similar tracking technologies through the G-Train Services, on end user devices, to collect diagnostic and usage related information (“Usage Data”). Customer hereby provides its consent to G-Train to use cookies or tracking technologies served by those web analytics tools, in a manner that is consistent with industry practice.

Ownership; Reservation of Rights

(a) Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to G-Train a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data to provide the G-Train Services. G-Train may collect and analyze data and other information (including, without limitation, Usage Data) relating to the provision, use and performance of the G-Train Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, G-Train may: (i) use such data and information to improve and enhance the G-Train Services and for other development, diagnostic and corrective purposes in connection with the G-Train Services and other G-Train offerings; and (ii) disclose such data in connection with its business and in accordance with the Privacy Policy.

(b) G-Train or its licensors retain all ownership and intellectual property rights in and to: (i) the G-Train Services; (ii) anything developed or delivered by or on behalf of G-Train under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).

(c) All rights not expressly granted by G-Train to Customer under this Agreement are reserved.

Privacy

Customer agrees to G-Train’s access, use, collection, storage and disclosure of Customer’s Personal Information for the purposes authorized under this Agreement. Customer understands that Personal Information will be treated in accordance with G-Train’s privacy policy located at https://www.gunnarpeters.com/app-privacy-policy (the “Privacy Policy“).

Customer User Account

G-Train will issue an account (a “Customer User Account“) to Customer. Customer will only use the G-Train Software and G-Train Services through the Customer User Account. Customer will not share the Customer User Account or any information obtained through the Customer User Account with any other person. Customer will promptly notify G-Train of any actual or suspected unauthorized use of the G-Train Software or G-Train Services. G-Train reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.

Support

G-Train uses service availability monitoring equipment to monitor the G-Train Services on a 24 hours a day, 365 days a year basis. Customer will generally have access to G-Train’s technical support from 10 AM to 6 PM PST Monday through Friday (excluding statutory and civic holidays observed in Canada and the United States): (i) via email at [email protected] Customer will consult the documentation and trouble-shooting information made available by G-TRAIN (including on the Website) prior to contacting G-Train for support. G-Train reserves the right to limit Customer’s access to support if Customer does not comply with these terms or uses an excessive amount of support.

Fees and Payment

Fees. Fees for the G-Train Services are described on the Website and in the Application (the “Fees”) and are payable based on the frequency identified in the payment plan that Customer selects. Customer will pay the Fees owed by Customer (including any additional fees for Customer’s use of the G-Train Services identified to Customer in advance) in accordance with this Agreement. Unless otherwise noted, all Fees are payable in advance.

Automatic Payment. Unless Customer provides G-Train with reasonable notice, upon renewal of Customer’s subscription pursuant to Section 11(a), Customer authorizes G-Train’s third party processors to charge the debit card, credit card or other payment account on file for Customer for the same subscription plan (or the most similar subscription plan if Customer’s subscription plan is no longer available) at the then current subscription Fees plus any applicable taxes. Unless otherwise requested by Customer, G-Train will process Customer payments using the same billing cycle as Customer’s current subscription.

Changes to the Fees. While G-Train does not anticipate that it will increase Fees for existing customers, G-Train reserves the right to change the Fees and institute new charges upon providing not less than 60 days prior notice to Customer.

Cancellation; Refunds. Customer may cancel the G-Train Services and request a refund of the Fees paid by Customer within 48 hours of signing up for such G-Train Services by contacting G-Train as described in this Section, in which case the subscribed G-Train Services will immediately terminate as of the date that G-Train provides such refund. If Customer chooses to cancel the G-Train Services, Customer must submit a cancellation request via the same method Customer used to sign up for the G-Train Services, as further described in the following link: http://support. G-Train. com/billing-and-accounts. Any cancellation made after the 48 hour period described in the first sentence will become effective as of Customer’s next payment period and Customer will continue to receive the G-Train Services paid for by Customer until such date. Any cancellation made less than 24 hours prior to the scheduled payment period termination date will become effective as of Customer’s next payment period, and Customer will continue to receive the G-Train Services paid for by Customer until such date. While G-Train is under no obligation to do so, in certain limited circumstances G-Train may in its sole discretion provide Customer with a pro rata refund of the Fees following the 48 hour period described above, in which case the subscribed G-Train Services will immediately terminate as of the date that G-Train provides such pro rata refund.

Disputed Invoices or Charges. If Customer believes G-Train has charged Customer incorrectly, Customer must contact via [email protected] G-Train within a reasonable time after having been charged by G-Train in order to request an adjustment or credit, and G-Train will review any identified charges upon notice from Customer. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. G-Train reserves the right to suspend Customer’s access to the G-Train Services until all due amounts are paid in full. Any late payment will be increased by the G-Train of collection (if any).

Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of G-Train.

Suspension. Any suspension of the G-Train Services by G-Train pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

Third Party Payment Processors. Customer will pay the Fees using a valid credit card, debit card or other payment account (e. g. PayPal) accepted by G-Train. By using the G-Train Services, Customer authorizes G-Train’s third party payment processor to post a pre-authorized charge for the Fees and to charge Customer’s credit card, debit card or other payment account for the Fees. The Fees do not include any payment processing fees assessed by G-Train’s third party payment processors for which Customer will be solely responsible. By using the G-Train Services, Customer authorizes G-Train’s third party payment processors to deduct and send directly to G-Train any amounts owed to G-Train pursuant to this Agreement. Third party payment processors are not subcontractors or agents of G-Train and any disputes between Customer and a third party processor regarding any payments or lack thereof are between Customer and the third party payment processor. G-Train and its third party payment processors are not responsible for the transmission or processing of any payments Customer makes pursuant to its use of the G-Train Services. Customer’s use of the payment services provided by G-Train’s third party payment processors may be subject to additional terms and conditions made available to Customer by such payment processors.

Confidential Information

Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of G-Train, to potential assignees, acquirers or successors of G-Train if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of G-Train.

Deletion of Confidential Information. Within 30 days of the expiration or termination of this Agreement, Customer will return or destroy G-Train’s Confidential Information.

Warranty; Disclaimer; Indemnity

Customer Warranty. Customer represents and warrants to, and covenants with G-Train that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable G-Train to provide the G-Train Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to G-Train and to or from all applicable third parties.

GENERAL DISCLAIMER. G-TRAIN DOES NOT WARRANT THAT THE G-TRAIN SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE G-TRAIN SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE G-TRAIN SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY G-TRAIN TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, G-TRAIN HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICpAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, G-TRAIN EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE G-TRAIN SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

Medical Disclaimer. The G-Train Services provided hereunder are not designed or intended to be a substitute for professional medical advice, diagnosis or treatment and should not be used as a replacement or substitute for professional medical advice, diagnosis, treatment or judgment. Customer acknowledges and agrees that medical treatment decisions will not be made by G-Train nor through the usage of the G-Train Services but remain based entirely upon health care providers’ professional medical judgement and in accordance with generally accepted standards of medical practice, including without limitation, verifying conclusions and outputs of the G-Train Services, confirming the accuracy of life-threatening information and verifying critically important results.

Indemnity. Customer will defend, indemnify and hold harmless G-Train, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) use of the G-Train Services (or any part thereof) by Customer in combination with any third party software, application or service. Customer will fully cooperate with G-Train in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of G-Train.

Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

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AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF G-TRAIN IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE G-TRAIN SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF G-TRAIN IN CONNECTION WITH THIS AGREEMENT EXCEED TEN CANADIAN DOLLARS ($10) OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL G-TRAIN’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

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TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL G-TRAIN BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

Apple App Store Additional License Terms

If the Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple“) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Use:

The parties acknowledge this Terms of Use is concluded between you and us, and not with Apple. The responsibility for the Application and content thereof is governed by this Terms of Use.

Notwithstanding anything else in this Terms of Use, you may use the Application only on or through an Apple device that you own or control

You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Application.

In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Terms of Use.

Any claim in connection with the Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Terms of Use, and Apple is not responsible for such claim.

Any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights will be governed by this Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

You represent and warrant that you are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

You may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Application.

Email Address: [email protected]

Apple is a third party beneficiary to this Terms of Use and may enforce this Terms of Use against you.

If any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

Google Play

If the Application is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, “Google“) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of this Agreement:

You acknowledge that Google is not responsible for providing support services for the Application.

If any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Google’s Google Play Developer Distribution Agreement as of the date this Terms of Use was accepted, the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.