Terms and Conditions
Now Performance Inc. designs products that help motivate and inspire your child to lead a more active life. These Terms of the Platform (“Terms”) apply to you and your child's use of the Now Performance Platform. The “Now Performance Platform” includes our devices including associated firmware, applications, software, websites, APIs, products, and services.
These Terms are an agreement between you and Now Performance Inc. When the Terms mention “Now Performance,” “we,” “us,” or “our,” they refer to the agreement that provides you, and your child, with the Now Performance Platform. When the Terms mention “You” they refer to both you and the child that you consented to wearing the watch and using the Now Performance Platform.
In accepting these terms you confirm that you are the legal guardian of the child wearing the watch, regardless of the name(s) used in description of the relationship.
You must accept these Terms to create an account and to access or use the Now Performance Platform. If you do not have an account, you accept these Terms by using any part of the Now Performance Platform. If you do not accept these terms, you are not permitted to create an account or use the Now Performance Platform.
Use of Now Performance Platform
All mobile application downloads and account registrations must be done by a parent or guardian of the child wearing the watch. Persons under the age of 13, or any higher minimum age required by the jurisdiction where that person resides, are not permitted to create an account.
Additionally, you cannot access or use the Now Performance Platform if you are barred from receiving services under applicable law or have previously been suspended or removed from the Now Performance Platform.
Creating an account
Full use of the Platform requires that you create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. Now Performance is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact us if you discover or suspect any security breach related to your account.
Full use of the Now Performance Platform is dependent upon your use of a mobile phone with adequate software and Internet access. The maintenance and security of this equipment may influence the performance of the Platform and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges and local cellphone carrioer. Please check with your Internet provider or local cellphone carrier for information on possible Internet data usage charges.
What you can do on the Now Performance Platform?
The Now Performance Platform is intended for your personal, noncommercial use.
Now Performance grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the Now Performance Platform, (2) access and view the Now Performance Content, (3) access and use the software and mobile applications provided by the Now Performance Platform, and (4) use the software that is embedded into Now Performance devices as authorized in these Terms. With respect to items (3) and (4), this license includes any third-party software embedded in any Now Performance Platform. This license is provided solely for your personal, noncommercial use and enjoyment of the Now Performance Platform as permitted in these Terms.
You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Now Performance Content, Now Performance Platform or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Now Performance or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Now Performance Platform: (1) use, display, mirror, or frame the Now Performance Platform or any individual element within the Now Performance Platform, including the layout and design of any page, without Now Performance’s express written consent; (2) use Now Performance’s name, any Now Performance trademark or logo, or any Now Performance proprietary information without Now Performance’s express written consent; (3) access or tamper with non-public areas of the Now Performance Platform, Now Performance’s computer systems, or the technical delivery systems of Now Performance’s providers; (4) test the vulnerability of any Now Performance system or breach any security or authentication measures; (5) circumvent any technological measure implemented by Now Performance or any of Now Performance’s providers or any other third party (including another user) to protect the Now Performance Platform; (6) access the Now Performance Platform or Now Performance Content through the use of any mechanism other than through the use of an Authorized Connection, Now Performance Platform, or Now Performance API; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that Now Performance provides to you or any other part of the Now Performance Platform.
Our enforceable rights
We reserve the right (but are not required) to remove or disable access to the Now Performance Platform, any Now Performance Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Now Performance Content, Your Content, or your use of the Now Performance Platform is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Now Performance Platform, and in response may take any action we may deem appropriate.
Use the Now Performance Platform at your own risk
By using the Now Performance Platform, you and your child do so solely at your own risk.
Our goal is to provide helpful and accurate information on the Now Performance Platform, but we make no endorsement, representation, or warranty of any kind about any Now Performance Content, information, or services. The accuracy of the data collected and presented through the Now Performance Platform is not intended to match that of medical devices or scientific measurement devices.
Use of the Now Performance Platform should not replace good judgment and common sense.
Consult your physician
Now Performance Platform is not intended to diagnose, treat, cure, or prevent any disease. If you or your child has a medical or heart condition, consult your doctor before beginning and using the Now Performance Platform, engaging in an exercise program, or changing your diet. If you or your child experience a medical emergency, stop using the Now Performance Platform and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you or your child learns about through the Now Performance Platform. If you or your child engages in any exercise program you receive or learn about through the Now Performance Platform, you agree that you and your child does so at your own risk and are voluntarily participating in these activities.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. To reduce irritation, follow four simple wear and care tips: (1) keep it clean, (2) keep it dry, (3) don’t wear it too tight, and (4) give your wrist a rest by removing the band for an hour after extended wear. If you or your child notices any skin irritation, soreness, tingling, numbness, burning, or stiffness in your hands or wrists while or after wearing the product, remove your device and please discontinue use. If any symptoms persist longer than 2-3 days after removing the device, consult your doctor.
Now Performance products have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult your doctor prior to use of such products if you or your child (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders.
You will indemnify and hold harmless Now Performance or its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the Now Performance Platform, (ii) Your Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation of Liability
NEITHER NOW PERFORMANCE, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE NOW PERFORMANCE PLATFORM OR SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE NOW PERFORMANCE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NOW PERFORMANCE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL NOW PERFORMANCE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE NOW PERFORMANCE SERVICE EXCEED COST OF THE DEVICE OR TWENTY DOLLARS ($20), WHICHEVER IS GREATER.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NOW PERFORMANCE AND YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Now Performance and you regarding the Now Performance Platform, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Now Performance and you regarding the Now Performance Platform and Now Performance Content.
We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the Now Performance Platform. When you use the Now Performance Platform after a modification becomes effective, you are telling us that you accept the modified Terms.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without Now Performance’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Now Performance may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Now Performance under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or (ii) by posting to the Now Performance Platform. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Now Performance’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Now Performance. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional terms may apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.