App Licensing Agreement

PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE APP

By clicking the “accept” or “ok” button, or installing and/or using the mobile software application (together with its Content, Marks and services, the “App“) you expressly acknowledge and agree that you are entering into a legal agreement with Milestone Sport Ltd. (“Milestone“, “we“, “us” or “our“), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this App End User License Agreement (“Agreement“). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not download, install or use the App.

  1. The App. Milestone provides a platform which enables you to track your running/walking activities including but not limited to providing you with certain running information such as detailed stats around, distance, number of runs, steps per minute, time, get alerts when you hit new personal bests and milestones, measure your progress against your goals and targets.
  2. Ability to Accept. By installing the App you affirm that you are over thirteen (13) years of age. If you are between the age of thirteen (13) and eighteen (18) years then, prior to installing the App, you must first review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand its terms and conditions and agree to them.
  3. Your Use of the App.

You agree to the following in connection with your use of the App:

  • You agree to abide by all applicable laws, regulations and rules in connection with your use of the App.
  • You agree that you are solely responsible for all acts or omissions associated with your access and use of the App and the access and use of the App by anyone on your behalf.
  • In connection with your use of the App, you will not:
    • breach the terms of this Agreement or any other applicable rules and instructions that Milestone may convey with respect to the use of the App;
    • interfere with, disrupt, circumvent or manipulate the functionality or operation of the App;
    • send automated or machine generated search queries or use robots, crawlers or similar applications to collect or compile content from the App;
    • display the App or any part thereof in an exposed or concealed frame, or link to elements on the App, such as images and videos, independently from the App or web pages on which they originally appear; and/or
    • impersonate any person or entity, or making any false statement pertaining to your identity.
  1. License. Subject to the terms and conditions of this Agreement, Milestone hereby grants you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license (“License“) to: (i) download, install and use the App on a mobile telephone, device or tablet (each a “Device“) that you own or control; and (ii) access and use the App on that Device in accordance with this Agreement and any applicable Usage Rules (defined below).
  2. License Restrictions. You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, sell, lease, lend or rent the App; (ii) except as permitted herein, make the App available over a network where it could be used by multiple devices at the same time; (iii) except as permitted herein or by applicable law, disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of the App; (iv) copy (except for back-up purposes), modify, improve, or create derivative works of the App or any part thereof; (v) circumvent, disable or otherwise interfere with security-related features of the App or features that prevent or restrict use or copying of any Content (defined below) or that enforce limitations on use of the App; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the App; (vii) use the communications systems provided by the App to send unauthorized and/or unsolicited commercial communications; (viii) use Milestone’s name, logo or trademarks without our prior written consent; and/or (ix) use the App to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
  3. Access to App. Milestone may remove or block access to the App, or any part thereof, for any reason that Milestone may consider to be justified in its sole discretion including, but not limited to:
    • to prevent misuse of the App; and/or
    • when Milestone deems the use of the App to be in breach of the terms of this Agreement, or a violation of any applicable law.
  4. Access to Content. Milestone may also remove or block access to some of the information or content made available through the App after a certain period of time. Consequently, you may not find content that you previously had access to through the App. The App does not operate as an archive or file storage service and you are solely responsible for the backup of your content.
  5. App Notifications. You explicitly agree that we may send you in-App notifications regarding the App, our services and third party advertisements or notifications (such as the retailers from which you bought your MilestonePod). Milestone is not responsible for any notification you receive from any third party including the content of such notification, services, information, messages or offers.
  6. Account. In order to use the App, and/or some of its features, you may have to create and register an account (an “Account“). You will be asked to provide us certain contact and personal details. We will explicitly indicate the fields that are mandatory to complete. If you create your Account, you must provide accurate and complete information for yourself. You are solely responsible for the activity that occurs in your Account, and you must keep your Account password secure. You must notify us immediately of any unauthorized use of your Account. You may deactivate your Account at any time by following the options within the App. We offer two ways to create an Account:
  • Online Registration Form: You can complete and submit an online registration form which we make available on the App.
  • Third Party Account: You can click on a sign-in box that we display on the App for Facebook or other designated third party services (each a “Third Party Account“).   If you choose this option, then a Third Party Account pop-up box will appear which you will need to approve in order to proceed, and which will describe the types of information that we will obtain from, and the types of activities that we may perform in connection with, your Third Party Account. Please note that in order to use this option, you will need to have, and may need to be signed-in to, an existing Third Party Account.
  1. Usages Rules. If you are downloading the App from a third party mobile device platform or service provider (“Distributor“), please be aware that the Distributor may have established usage rules which also govern your use of the App (“Usage Rules“). We specifically refer to the Usage Rules of certain Distributors below in the Section entitled “Distributor Requirements and Usage Rules”, but other Usage Rules may be applicable depending on where the App has been downloaded from. You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from installing and/or using the App.
  2. Intellectual Property Rights.
    • The App is licensed and not sold to you under this Agreement and you acknowledge that we and our licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the App (and its related software). All references in this Agreement to the App include: (i) the Content and Marks (defined below), (ii) its software, including the source and object code therein; and (iii) its tools and services. We reserve all rights not expressly granted herein to the App. “Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
    • The (i) content on the App, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos and interactive features (collectively, “Content“), and (ii) the trademarks, service marks and logos contained therein (“Marks“), are the sole property of Milestone and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties.
    • The Content on the App is provided to you “as is” for your personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without the Milestone’s prior written consent. If you download or print a copy of the Content you must retain all copyright and other proprietary notices contained therein. The Milestone’s logo, and other marks are Marks of Milestone’s or its affiliates. All other trademarks, service marks, and logos used on the App are the trademarks, service marks, or logos of their respective owners.
  3. Links to Other Sites and Advertisements
    • The App may contain links to other web sites that are not owned or controlled by Milestone (each a “Third Party Site”) and may also permit you to post content to Third Party Sites. We are not affiliated with, have no control over, and assume no responsibility for, the content, privacy policies, or practices, of any Third Party Site. You may find the Third Party Sites or the information and content posted therein not compatible with your requirements, or you may object to their content, or find such content to be annoying, improper, unlawful or immoral. You: (i) are solely responsible and liable for your use of and linking to Third Party Sites and any content that you may send or post to a Third Party Site; and (ii) expressly release us from any and all liability arising from your use of any Third Party Site. We encourage you to read the terms and conditions and privacy policy of each Third Party Site that you choose to visit or interact with.
    • The App may include paid advertisements, sponsored links and commercial information (the “Advertisements” or “Rewards”). By clicking the Advertisements you may be transferred to a service of a third party advertiser or receive any other messages, information or offers from the advertiser and from others. Milestone is not responsible for any of the third party advertisers’ practices, including their privacy practices, or for the content of their Advertisements, services, information, messages or offers.
  4. Correction of Errors. Milestone makes an effort to ensure the reliability of the information that appears on the App. However, errors may occur. If you believe that any information sent or published by Milestone on the App is erroneous, please inform Milestone at info@milestone.com.
  5. Payments. The License granted hereunder is currently for free, but we may in the future charge a fee for certain uses (including but not limited to non-personal use). You will not be charged for any such uses of the App unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the App. Notwithstanding the foregoing, please be aware that your use of the App may require and utilize internet connection or data access. To the extent that third party service provider or carrier charges for your internet or data usage are applicable, you agree to be solely responsible for those charges.
  6. Privacy. We will use any personal information that we may collect or obtain in connection with the App in accordance with our privacy policy which is available at www.milestonepod.com/privacy as may be amended form time to time (“Privacy Policy“), and you agree that we may do so. Please also be aware that certain personal information and other information provided by you in connection with your use of the App (including its related services) may be stored on your Device (even if we do not collect that information). You are solely responsible for maintaining the security of your Device from unauthorized access.
  7. Information Description. We attempt to be as accurate as possible. However, we cannot and do not warrant that the Content available on the App is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content.
  8. Warranty Disclaimers.

THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE APP WILL OPERATE ERROR-FREE, THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL CODE or that WE will correct any errors in the APP. YOU AGREE THAT NEITHER WE NOR DISTRIBUTOR WILL BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.

CONTENT FOUND ON THE APP OR THROUGH THE APP (INCLUDING, WITHOUT LIMITATION, VIA COACHING SERVICE) IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER MEDICAL PROVIDER. WE ARE NOT A LICENSED MEDICAL CARE PROVIDER AND HAVE NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC EXERCISE ON A MEDICAL CONDITION. YOU SHOULD ALWAYS CONSULT A QUALIFIED AND LICENSED MEDICAL PROFESSIONAL PRIOR TO BEGINNING OR MODIFYING ANY FITNESS PROGRAM, DIET OR IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON OR THROUGH THE APP. YOU SHOULD CONSULT WITH YOUR PHYSICIAN BEFORE FOLLOWING ANY TRAINING INSTRUCTIONS YOU RECEIVE THROUGH THE APP OR PARTICIPATING IN ANY EVENT ANNOUNCED ON. NOT ALL EXERCISES OR ACTIVITIES THAT MAY BE SPECIFIED ON THE APP ARE SUITABLE FOR EVERYONE. YOU SHOULD UNDERSTAND THAT WHEN PARTICIPATING IN ANY EXERCISE OR EXERCISE PROGRAM, THERE IS THE POSSIBILITY OF PHYSICAL INJURY AND/OR DEATH. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. IF YOU FEEL DISCOMFORT OR PAIN, IMMEDIATELY STOP THE ACTIVITY CAUSING SUCH DISCOMFORT OR PAIN.

WE ARE NOT RESPONSIBLE FOR ANY HEALTH PROBLEMS THAT MAY RESULT FROM TRAINING PROGRAMS, PRODUCTS, OR EVENTS YOU LEARN ABOUT THROUGH THE APP. IF YOU ENGAGE IN ANY EXERCISE PROGRAM YOU RECEIVE OR LEARN ABOUT THROUGH THE APP YOU AGREE THAT YOU DO SO AT YOUR OWN RISK AND ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES.

  1. Limitation of Liability.

UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS, BE LIABLE FOR ANY LOSS OF MONEY, GOODWILL, REPUTATION, SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE APP EVEN IF THE WE OR ANY DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

IN ANY EVENT, AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT OUR TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO US FOR USING THE APP WITHIN THE SIX (6) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.

For clarity, this limitation of liability provision shall survive the termination of this Agreement for any reason.

  1. Indemnity. You agree to defend, indemnify and hold harmless us and our affiliates, and our respective officers, directors, employees and agents, and any Distributor, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the App; (ii) your violation of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) your interaction with another App user or third party. Without derogating from or excusing your obligations under this section, we reserve the right (at our own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
  2. No Obligation. Except as required by applicable law, we are not obligated to maintain or support the App. Both Milestone and you acknowledge that the applicable Distributor has no obligation to provide you with any maintenance and support services with respect to the App.
  3. Relationship with Distributor. Both Milestone and you acknowledge that: (i) this Agreement is concluded between Milestone and you only, and not with any Distributor; (ii) as between Milestone and Distributor, Milestone is solely responsible for the App and the Content thereof; and (iii) notwithstanding the foregoing, the applicable Distributor and its subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
  4. Anonymous Information. You acknowledge and agree that Milestone may collect and use Anonymous Information (as defined below) regarding your activity on the App in order to provide and improve the App. We may also disclose Anonymous Information (with or without compensation) to third parties, including advertisers and partners, for purposes including, but not limited to, targeted advertisements. “Anonymous Information” means information which does not enable identification of an individual user, such as aggregated information about the use of our App.
  5. Changes in the Services. Milestone may make changes to the App at any time. The changes may include, for example, the scope or type of the App’s services, the layout or display and the services’ content. You agree and acknowledge that Milestone does not assume any responsibility with respect to, or in connection with the introduction of, such changes or from any malfunctions or failures that may result therefrom.
  6. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the App nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
  7. Updates and Upgrades. We may from time to time provide updates or upgrades to the App (each a “Revision“), but are not under any obligation to do so. Such Revisions will be supplied according to our then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original App, unless the Revision is accompanied by a separate license agreement which will govern the Revision.
  8. Term and Termination. This Agreement is effective until terminated by us or you. We reserve the right, at any time, to: (i) discontinue or modify any aspect of the App; and/or (ii) terminate this Agreement and your use of the App with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the App in any way, your only recourse is to immediately discontinue use of the App. Upon termination of this Agreement, you shall cease all use of: (i) the App, and shall destroy all copies of the App and any related documentation that are your possession or under your control, and (ii) your Account.
  9. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by us without restriction or notification.
  10. Modification. We reserve the right to modify this Agreement at any time by sending you an in-App notification and/or publishing the revised Agreement on the App. Such change will be effective ten (10) days following the foregoing notification thereof, and your continued use of the App thereafter means that you accept those changes.
  11. General. This Agreement, and the relationship between you and Developer, shall be governed by and construed in accordance with the laws of the Israel, without regard to its conflict of laws rules. You agree to submit to the personal and exclusive jurisdiction of the courts located in Israel, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction. This Agreement, and any other legal notices published by us in connection with the App, shall constitute the entire agreement between you and Milestone concerning the App. In the event of a conflict between this Agreement and any of the foregoing, the terms of this Agreement shall prevail. No amendment to this Agreement will be binding unless in writing and signed by Milestone. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
  12. Distributor Requirements and Usage Rules.

Apple. If you download the App from the Apple, Inc. (“Apple“) App Store (or in any event if you download an Apple iOS App) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:

  • You acknowledge and agree that:
    • this Agreement is concluded between Milestone and you only, and not with Apple, and Milestone and its licensors, and not Apple, are solely responsible for the App and the content thereof.
    • your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
    • the License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
    • Milestone is solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement, or as required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
    • Milestone is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Milestone’s sole responsibility;
    • Milestone, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation;
    • in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
    • Apple and its subsidiaries are third party beneficiaries of the Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof;
    • You must comply with applicable third party terms, if any, when using the App.
  • You represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
  • If you have any questions, complaints, or claims regarding the App, please contact Milestone at:

Email:               support@milestonepod.com

Address:            9250 Bendix Road North, #605, Columbia, MD 21045

Telephone:

  • By entering into this Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that this Agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed Application End User License Agreement which is part of the Apple App Store Terms of Service, at apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).

Last updated: February 2015