Ecom App Beta User Agreement
The Beta App User Agreement (aka “The Boring Bit”)
This is the only dull bit of our mobile app (the “App”) (promise!), but we like to think of it as lifting for your brain (#NoPainNoGain). Seriously though, it is important that you look through these terms properly as they determine how you can/cannot use the App and your relationship to Gymshark. You won’t be able to use the App unless you agree to these requirements.
So - if you are happy- click “agree” to confirm that you have read and understood these terms and that you agree to be legally bound by them. If you do not agree to these terms - you are going to have to miss out on using our App and you need to delete it from all your devices.
1. WHO WE ARE AND WHAT THESE TERMS DO
1.1 Who we are. This App is offered by Gymshark Limited (we may refer to ourselves herein as “Gymshark”, “our”, “we” or “us,”). We are a company incorporated and registered in England and Wales with company number 08130873. Our main office is at G.S.H.Q. Blythe Valley Park, 3 Central Boulevard, Solihull, United Kingdom, B90 8AB.
1.2 What these terms cover and why you should read them. These terms govern the access or use by you, an individual, from any country or territory worldwide, of applications, websites, content, products, and services (the “Services") made available by Gymshark. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE APP OR THE SERVICES. In these terms, the words "including" and "include" mean "including, but not limited to." These terms tell you who we are, how we will provide the App to you, how you or we may end the contract, how we may change the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us straight away.
1.3 How we may contact you. If we need to contact you, we will do so either through an email address provided by you to us or through the App.
1.4 Our Services. The Services we provide through our App is a technology platform that will enable you, as a user of our App, to view and purchase products from us, view personalized product recommendations, access your account with us to track your orders, make returns, receive sale alerts and promotional nudges.
2. USE OF THIS APP
2.1 This App, updates and supplements are only to be used by people who have registered with us. All use also needs to be in accordance with these terms only. If you have not registered with us, or are no longer registered with us, you need to immediately stop using the App and delete it from your device.
2.3 You use the information on the App at your own risk- we aren’t forcing you. Although we make reasonable efforts to update the information provided by the App we make no representations, warranties or guarantees that such information is accurate, complete or up to date.
2.4 Whose devices can I use the App on? You can only download, install and use this App on a device that you own or have permission to use for these purposes. You will be responsible for complying with these terms and for any use that is made of this App on another device, whether or not you own the device and/or if such use is with your knowledge or consent.
2.5 Is my device compatible? The App should only be downloaded to and installed on a compatible device. Please read the App store listing for the App before downloading to ensure that your device is compatible.
2.6 It can be a pain sometimes but to make sure the App works, keep updating your device. You must ensure that the operating system on your device is kept updated to the latest version available to you.
2.7 Updates to the App. Sometimes we might automatically update the App to make it even better, reflect changes that might be made to the operating system or sort out security issues. Please ensure you accept all updates we provide in respect of the App. If you choose not to install such updates or opt out of automatic updates you may not be able to continue using the App or you may find the functionality is reduced. The App will always match the description of it provided to you when you originally purchased it.
3. YOUR ACCOUNT
3.1 Protect yourself! - keep your login details secret
3.1.1 You must keep any login details such as username, password and security questions confidential and not disclose them to any other person. If you have any reason to believe that they have been compromised, you must promptly reset them in the App using the ‘forgotten password' feature.
3.1.2 You must not under any circumstances allow any other person to access the platform using your login details. Not only will it affect the functionality of the App as statistics and tracking will not be correct, but you will also be responsible for any actions taken by a person using your user account, whether or not with your knowledge or consent.
3.1.3 Allowing others to access the App using your login details is a breach of these terms and may result in your right to use the App being suspended or us ending your right to use it.
4. YOUR RIGHT TO USE THIS APP
4.1 What can I do? In return for you agreeing to comply with these terms, you can:
4.1.1 download or stream a copy of the App onto a compatible Apple device and view, use and display the App on such devices for your personal, non-commercial use only;
4.1.2 receive and use any free supplementary software or updates to the App incorporating “patches” and corrections of errors as we may provide to you.
4.2 Our App is free! We do not charge you for downloading or using the App.
4.3 You must be over 18 to accept these terms and to download and use the App and to make in-App purchases. We do not permit individuals under 18 years of age to become registered users of our App and to make in-app purchases. By downloading the App, you represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into these terms and to comply with these terms.
4.4 If you are registered you are in! Provided that you are registered with us, subject to these terms, you may use the full functionality of this App by agreeing to these terms and entering your login details.
4.5 So that you comply with Apple’s terms, by clicking “Accept” below, you confirm that it is possible that the App and/or its contents could be subject to government export controls or other restrictions. If you download anything from or use the App, you represent that you are not subject to such controls or restrictions. You shall not, directly or indirectly, export, re-export, or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable U.S. federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the App available outside the U.S.
4.6 Suspension. We are entitled to suspend or end your right to use the App in various circumstances including if you break these terms. If you cease to be able to access the App you will need to address this with us.
5. ACCEPTABLE USE
The Beta App User Agreement (aka “The Boring Bit”) This App is open to anyone that complies with these terms, and we want all members of our Gymshark community to feel welcome, so before you use the App, you agree that you will comply with our acceptable use requirements set out below at all times:
You will not access, store, distribute or transmit any viruses, code, programs or any material during the course of your use of the App or undertake any act or make an omission that:
5.1.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially, ethnically offensive or otherwise objectionable;
5.1.2 facilitates illegal activity;
5.1.3 act fraudulently or maliciously, for example by hacking into or inserting malicious code, such as viruses or harmful data into the App or any operating system;
5.1.4 depicts sexually explicit images;
5.1.5 promotes unlawful violence;
5.1.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
5.1.7 infringe our intellectual property rights or those of any third party (including by the submission of any material);
5.1.8 in a manner that is otherwise illegal or causes damage or injury to any person or property; or
5.1.9 could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; or
5.1.10 collects or harvests any information or data from any system or attempt to decipher any transmissions to or from the servers running the App.
6. WHAT IF YOU NEED HELP?
6.1 If you need help (related to our App), contact Gymshark. We are always happy to help – see specific places to find help relating to the App in this paragraph 6. If you need life help – we hear you – there is plenty of useful stuff out there, but our App support just won’t cut it.
6.2 Credential/logging in issues. If you need help with access credentials such as username, password and security questions then please contact our customer support team at firstname.lastname@example.org.
6.3 Other App Issues. Should you have a question or problem with the App you should use the live chat and in App ticketing support system to resolve this.
6.4 It’s not Apple’s fault. Anything to do with the App is our bag – so come to use with anything relating to the App and we will try to help you. Please leave Apple alone to do what it does best! In the meantime, we will do our best to repair or replace the App. If we can’t fix a fault or can’t sort it within a reasonable time and without significant inconvenience you can get some or all of your money back.
6.5 Contacting us with complaints. If you think the App is faulty or misdescribed or wish to contact us for any other reason, please email our fabulous customer support team at email@example.com.
6.6 Reviewing the App. If you choose to leave a review of the App on the app store, or other review platform, please ensure that you do so only (a) in good faith, (b) in accordance with the app store, or other platform, rules and guidelines and (c) from an account in your own name. Remember, the app store, or other platform, review system should not be used to raise questions or bug reports regarding the App. If your review relates to, refers to, or is influenced by a question or difficulty you have with the App, you should leave it only after having raised the issue through the live chat and in App ticketing support system and waiting a reasonable amount of time to receive a response.
7. RESTRICTIONS ON YOUR USE OF THE APP
Other things you can’t do. You agree that you will:
7.1 not rent, lease, sub-licence, loan, provide or otherwise make available, the App in any form, in whole or in part to any person (animal, mineral, vegetable or spiritual being (etc.)), without prior written consent from us;
7.2 not copy the App (except where such copying is part of the normal use of the App, is necessary for the purpose of back-up as mentioned in paragraph 4.1.2 or operational security);
7.3 not to side-load the App or otherwise install it other than via the relevant app store;
7.4 not to translate, merge, adapt, vary, modify or alter the whole or any part of App, nor allow the App or any part of it to be combined with, or become incorporated in, any other programs except as necessary to use the App on devices as permitted in these terms (or except where permitted by law);
7.5 not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App nor attempt to do any such things;
7.6 not to copy, reproduce or publish on any media athlete plans and workouts.
8. OWNERSHIP OF STUFF
8.1 It’s ours, all ours! You acknowledge by agreeing to these terms that all intellectual property rights in the App and any related support services we provide anywhere in the world belong to us or our licensors and the rights in the App and any Services are licensed (not sold) to you to use the App on Apple-branded products owned or controlled by you and in accordance with Apple’s Usage Rules available in the App Store Terms of Service. You have no intellectual property rights in, or to, the App or any Services other than the right to use them in accordance with these terms.
8.2 Uploaded content will belong to us. We will treat any content you upload via the App as belonging to us. You must not upload any content via the App unless you have a right to do so and such content complies with the Acceptable Use section.
8.3 If anyone else suggests our App or its use in line with these terms infringes their IP or has any other product claim regarding the App. We are responsible for investigating, defending, settling and discharging an infringement claim.
9. PROTECTING YOUR PRIVACY AND SECURITY
9.1 How we protect your personal information. We are committed to protecting your privacy and will only use your personal information in accordance with applicable data protection law. Our Privacy Notice at https://gymshark.com/pages/gymshark-privacy-notice explains how we use your personal information. All personal information we collect, use or otherwise process through or in connection with this App is subject to our Privacy Notice.
9.2 The Internet isn’t perfect. As you know, internet transmissions are never completely private or secure and any message or information that you send using the App may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
9.3 We may collect technical data about your device. By using the App, you agree to us collecting and using technical information about the devices you use the App on and related software, hardware and peripherals to improve our App and products.
9.4 Where are you? We don’t directly collect location data from you, though Apple may collect such data and we may receive such data (but you can turn location services off in your Apple settings).
10. HOW ARE YOU COVERED IF SOMETHING GOES WRONG?
IF YOU LIVE IN THE UNITED STATES, THEN THIS CLAUSE 10 IS SUBJECT TO THE TERMS IN PARAGRAPH 14 IN RESPECT OF OUR LIABILITY TO YOU. FOR EVERYONE ELSE, (OUTSIDE THE US), PARAGRAPH 14 DOES NOT APPLY SO PLEASE READ THIS PARAGRAPH 10 CAREFULLY).
10.1 Although we don’t expect this to be necessary, we are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaching these terms or our failing to use reasonable care and skill. You’ll appreciate though, that we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
10.2 We don’t exclude or limit our responsibility to you where it is unlawful to do so. This includes liability for death or personal injury caused by our gross negligence or the gross negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation by us. However, this does not mean that we are responsible for any personal injury or death caused as a result of you undertaking the workouts or using the App or Services as these are not individually tailored to you. As recommended in paragraphs 2.2 and 2.3, please see a doctor or medical professional to make sure you are good to go.
10.3 When we are liable for damage to your stuff. If the App content that we have supplied is defective and damages a device or digital content belonging to you, we will either repair the damage or pay compensation. However, we will not be responsible for damage that you could have avoided by following our advice to apply an update offered to you free of charge, or for damage that was caused by you failing correctly to follow installation instructions or having the minimum system requirements in place.
10.4 We are not liable for business or consequential losses. The App is for your private, personal, non-commercial use only. You should not use the App for any commercial, business or resale purposes and if you do, we will have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
10.5 We are not responsible for events outside our control. If our provision of support for the App or any additional services is delayed by an event outside our control (or if a server or the internet goes down, which means you can’t access the App), we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this, we will not be liable for delays caused by the event, but if there is a risk of a substantial delay, you may contact our customer support team at firstname.lastname@example.org to end your contract with us.
10.6 Back-up your stuff! We recommend that you regularly back up any content and data used in connection with the App, to protect yourself in case of problems with the App. Although the App should not normally cause any loss of data relating to other Apps or otherwise unrelated to the App, we cannot be responsible if you suffer a loss of data which could have been avoided if you had backed up the device immediately before such loss.
11. YOUR RIGHTS TO END THE CONTRACT
11.1 You can always end your contract with us. If you no longer want to use this App and want to delete your account that’s your choice, you can end your contract with us at anytime.
11.2 How to end a contract with us. To end a contract with us, just contact our customer support team at email@example.com. But please remember that when your account is deleted you will lose all of data within the App and you won’t be able to recover this and so if you want to keep anything please make sure anything you want to keep is backed up.
12. OUR RIGHTS TO END THE CONTRACT
12.1 We may end the contract if you break it. We may end your right to use the App at any time by contacting you if you have broken these terms in a serious way. If what you have done can be put right, we will give you a reasonable opportunity to do so.
12.2 We may end the contract if you do not regularly use and/or interact with the App and/or the Beta Testing Group. The purpose of giving you access to the Beta App is to allow us to understand what works well and what could be improved. If you are unable to regularly use and/or interact with the App and/or the Beta Testing Group, then we may end your right to use the App at any time by contacting you.
12.3 We may end the contract if we decide to suspend or stop providing the App. Sometimes, circumstances change and life moves on, and, although we can’t imagine it at the moment, at some point in the future, we may decide to stop providing our App to you. If we decide to suspend or stop providing our awesome App, we will let you know if we are going to do this.
12.4 If we end your rights to use the App. These are the consequences:
12.4.1 you must stop all activities authorised by these terms, including your use of the App;
12.4.2 you must delete or remove the App form all devices in your possession and immediately destroy all copies of the App which you have and confirm to us that you have done this;
12.4.3 we may remotely access your devices and remove the App from them and cease providing you with access to the support services.
13. OTHER IMPORTANT TERMS
13.1 Your use of the App may also be controlled by Apple’s rules and policies, which you can find here https://www.apple.com/uk/legal/internet-services/itunes/uk/terms.html. These rules and policies will apply in addition to these terms. To the extent there is a conflict, the Apple rules and policies prevail. You will of course have to comply with your other programs terms with other providers too!
13.2 From time to time, we may change, modify, supplement or remove portions of these terms to reflect changes in law or best practice or to deal with additional features which we introduce. If we do, you will receive a notification the next time you open the App and will be required to agree to the updated user agreement before you can continue to use the App. If you don’t accept these changes, you will not be permitted to use the App.
13.3 This document and any terms referred to in it make up the entire user agreement between you and us relating to your use of the App. You acknowledge and accept that, in agreeing to the terms of this user agreement you have not relied on any representation, undertaking or promise except as set out in this user agreement. Neither you nor we will have any remedy in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that are not set out in these terms.
13.4 We are not responsible for third party websites. The App may have links to other independent websites that are not provided by us. These sites are not controlled by us and we are not responsible for and have not checked and approved their content or their privacy policies (if any!). You will need to use your own independent judgment about whether to use such sites, including whether to buy any products or services offered by them.
13.5 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps in respect of your breaking this contract that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
13.6 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
13.7 We are giving you personally the right to use the App as set out above in paragraph 4 - lucky you! You may not transfer the App to anyone else, whether for money, for anything else or even for free. If you sell or give away any device on which the App is installed, you need to uninstall it before you sell the device.
13.8 Apple and the other Apple group companies can enforce these terms on our behalf to ensure you comply. Other than this, nothing in this user agreement confers any rights on any party other than you or us.
13.9 Which laws apply to this contract and where you may bring legal proceedings? Good question! Unless you live in the United States, these terms are governed by English law and you can bring legal proceedings in respect of the App in the English courts. If you live in Scotland, you can bring legal proceedings in respect of the App in either the Scottish or the English courts. If you live in Northern Ireland, you can bring legal proceedings in respect of the App in either the Northern Irish or the English courts.
13.10 Alternative dispute resolution for non-US residents. Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without you having to go to court. If you are not happy with how we have handled any complaint, you may want to contact the alternative dispute resolution provider we use. You can submit a complaint to the Centre for Effective Dispute Resolution (“CEDR”) via their website at http://www.cedr.com/idrs. CEDR will not charge you for making a complaint and if you are not satisfied with the outcome you can still bring legal proceedings. In addition, please note that disputes may be submitted for online resolution to the European Commission Online Dispute Resolution platform. If you are resident in the US, please refer to paragraph 14.5 below.
14. If you live in the United States the following additional terms apply:
14.1 IF YOU CHOOSE TO USE THE APP, YOU DO SO AT YOUR SOLE RISK. GYMSHARK EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE THAT ARE NOT EXPRESSLY SET OUT IN THESE TERMS. GYMSHARK MAKES NO WARRANTY THAT THE APP OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." IN ADDITION, GYMSHARK MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE APP OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE APP, OR THAT THE SERVICES OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE.
14.2 WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT ON THE APP (INCLUDING ANY THIRD PARTY USER CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APP OR THE SERVICES, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
14.3 Our maximum aggregate liability under or in connection with these terms (including your use of any App or Services) whether in contract, tort (including negligence) any cause of action or otherwise, or under any theory of damages, shall in all circumstances be limited to the greater of (i) the amount you paid for the App and the Services in the last twelve (12) months; or (ii) $100.
14.4 You agree to indemnify and hold Gymshark and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the App or Services; (ii) your breach or violation of any of these terms; (iii) Gymshark's use of your information or (iv) your violation of the rights of any third party, including third party providers. We reserve the right to assume control of the defense of any third party claim that is subject to your indemnification, in which case you will cooperate with us in asserting any available defenses.
14.5 You agree that any dispute, claim or controversy arising out of or relating to these terms, the App or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration between you and Gymshark, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
14.5.1 You acknowledge and agree that you and Gymshark are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Gymshark otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this section 14.5.1 will be deemed void. Except as provided in the preceding sentence, this section 14.5.1 will survive any termination of these terms.
14.5.2 The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at https://www.adr.org/consumer or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. These terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/consumer.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
14.5.3 Unless you and Gymshark otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Gymshark submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
14.5.4 The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Gymshark will not seek, and hereby waives all rights Gymshark may have under applicable law to recover, attorneys' fees and expenses if Gymshark prevail in arbitration.
14.5.5 Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
14.6 We may also wish to stop providing the App, and may terminate use of it at any time without giving notice of termination to you. Unless we tell you otherwise, upon any termination, (a) the rights and licenses granted to you in these terms will end; (b) you must stop using the App, and (if needed) delete it from your device.