By progressing to purchase this Endure IQ product/service irrespective of checking the box above, you are confirming you will abide by these terms and conditions. If you disagree with any of the terms or conditions or have not provided all of the information required as listed above you cannot undertake this Endure IQ course/module. Access to this course module (EIQ201) and course materials is not indefinite and will end 6 weeks after your date of enrollment. By purchasing this course module, you thereby give permission for Endure IQ to send email communication to the email address provided upon enrollment. If you wish to cancel email communication from Endure IQ you can do so at any time by unsubscribing via the link provided in our emails.
1. Type of Information provided disclaimer:
a) This Endure IQ course provides general information and discussions about performance, health, enjoyment clinical trials and related subjects. The information and other content provided in this information, or in any linked materials, are not intended and should not be construed as medical advice, nor is the information a substitute for professional medical expertise or treatment.
b) If you or any other person has a medical concern, you should consult with your health care provider or seek other professional medical treatment. Never disregard professional medical advice or delay in seeking it because of something that has been read or heard in this course.
2. Before taking part in any form of strenuous activity or change in diet, it is your responsibility to seek medical advice whenever you are unsure.
3. Endure IQ is not liable for any illness, injury or medical reaction caused guidelines outlined in any course.
4. You understand that the Endure IQ content has been independently developed based off the published research and personal experiences as athletes and sports practitioners.
5. You understand individual results and outcomes from completing this course will vary based on your current health for several reasons including but not limited to current diet, environment, genetics, metabolic rate, physical exertion and compliance. Endure IQ do not guarantee results.
6. We reserve the right to modify these terms and conditions at any time and will send email notification of changes.
Terms of Service and Enrollment Agreement
These Terms of Service and Enrollment Agreement (this “Agreement”) are entered into by and between Endure IQ Ltd., a limited liability company organized in New Zealand (“Endure IQ” or “we” or “us”) and you (“you” or “your”). You and Endure IQ may also be referred to individually as a “Party” and, collectively, as the “Parties.”
IT IS ESSENTIAL THAT YOU READ THESE TERMS OF SERVICE
AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.
Your use of this Site AND PURCHASE OF THIS PRODUCT/SERVICE indicates your acceptance of this Agreement.
Endure IQ has developed, owns and operates the platform known as “EndureIQ.com” and such other related online websites and applications as Endure IQ may create and with which it may partner (collectively, the “Site”).
The Site provides instructional programs (each, a “Course”), tools, videos and information, access to private training, training plans (including the Workout Library), and other events relating to athletic endurance performance to help athletes who use the Site, enroll in Courses, join the Training Squad, enroll in One-on-One Coaching or Consultation (each, a ”User” and, collectively, the “Users”) improve their skills and capabilities (collectively, such offerings and services of Endure IQ shall be referred to herein as the “Services”).
The Site and Services are not intended for persons under 18 years of age.
The Services provided to you shall be included in any reference to your use of the Site.
Therefore, the Parties agree as follows:
1. AGREEMENT TO BE BOUND
You agree to be bound by this Agreement by your use of the Site. If you do not agree with or do not wish to be bound by any provision hereof, cease using this Site immediately.
In addition to the definitions provided throughout the Agreement, the following terms have the following meanings when used herein:
“Coached Athlete” means a person who has accepted to have one-on-one coaching.
“Coached Athlete Membership” means the result of accepting one-on-one coaching.
“Coaching Fee” means the amount paid to for one-on-one coaching.
“Coaching Plan” the features of the Coached Athlete Membership as defined between coach and Coached Athlete.
“Coaching Term” means the period from the commencement of a Coached Athlete Membership to its termination.
“Documentation” means any websites, manuals, videos, documentation, emails and other supporting materials related to the Site that Endure IQ provides to you or that you can access under this Agreement. Documentation is considered part of the Site.
“Endure IQ Materials” means videos, publications, documentation, training plans websites, apps or other benefits that are accessible to only Enrollees, Members, and Coached Athletes.
“Endure IQ Resources” means the Site, the Courses, the Training Library, the Workout Library, and the Endure IQ Materials.
“Enrollee” means a person who has enrolled in one or more Courses.
“Enrollment” means the result of enrolling in a Course.
“Enrollment Fee” means the amount paid for a Course.
“Member” means a person who has joined the Training Squad.
“Membership” means the result of joining the Training Squad.
“Membership Fee” means the amount paid to join the Training Squad.
“Membership Plan” the features of each level of Membership – Basic, Standard and Premium – as defined on the Registration Page.
“Membership Term” means the period from the commencement of a Membership Plan to its termination.
“Personal Information” means the contents of your profile, any additional information you may provide and any search criteria you may choose.
“Training Squad” means an on-going training hub which Members may join and which includes access to a training calendar, training plans, and workout library which can be adjusted to the users’ ability .
“Workout Library” means the programs and system of training available exclusively to Members of the Training Squad.
You do not have to enroll in a Course, join the Training Squad, or purchase any other service or product to use the Site.
3.1 COURSE ENROLLMENT
If you enroll in a Course, you can access the Course in which you enrolled as well as other Endure IQ Materials we may choose to provide to Enrollees.
Enrollment will require either a valid credit card or a PayPal account on which we will charge the Enrollment Fee. Charges will be made on your credit card for each Course in which you enroll. There will be no periodic or recurring charges.
Refunds will be available PROVIDED we receive a written request therefor within Twenty One (21) days of purchase and the Enrollee must not have completed more than 50% of the course tutorials. Thereafter, there will be no refunds, discounts, credits or allowances for any reason including but not limited to inability to follow the training depicted in a Course or to access or use the Course.
Also available to Enrollees at an extra fee is the Education Community Membership which gives Enrollees access to a closed group with Course instructors. The Education Community Membership is a weekly subscription which will require a valid credit card or a PayPal account on which we will charge the subscription fee weekly. You may cancel at any time but the Education Community Membership subscription will automatically renew until terminated by you or us, as provided herein. Upon renewal, the method of payment provided by you shall be charged the subscription fee. In the event the payment method provided by you is declined, we will notify you and you will have the opportunity to provide an alternative method of payment within Five (5) business days of notice of decline. If a payment is not effectively processed, your subscription will be terminated.
3.2 TRAINING SQUAD MEMBERSHIP
You can join the Training Squad as a Basic Member, a Standard Member or a Premium Member (each, a “Membership Plan”).
When you join as a Member, you will receive the benefits provided for the type of Membership you purchase, as described on the registration page.
A Membership Plan will require a valid credit card or a PayPal account on which we will charge the Membership Fee on a recurring weekly basis in accordance with the Membership Plan chosen by you. In the case of a Premium Membership, if you have selected the option of a once-off annual payment, this will be a once-off payment on your nominated credit card and your subscription will roll-over annually.
Each Membership Plan includes One (1) week PROVIDED of access to the features and benefits associated with that Membership Plan, however, Premium Members may elect to pay annually (each, the “Membership Term”).
Membership Plans automatically renew until terminated by you or us, as provided herein. Upon renewal, the method of payment provided by you shall be charged the Membership Fee as specified for the Membership Plan you selected. In the event the payment method provided by you is declined, we will notify you and you will have the opportunity to provide an alternative method of payment within Five (5) business days of notice of decline. If a payment is not effectively processed, your Membership will be terminated.
You may upgrade or terminate a Membership Plan at any time. If you terminate a Membership Plan other than at the end of its term, there will be no credits or offsets for the portion of the then-current Membership Term (see below) after you downgrade.
By becoming a Training Squad Member, you acknowledge that access to the Training Squad training plan libraries operates through Today’s Plan and you will be required to accept Today’s Plan terms and conditions and create a Today’s Plan account in order to complete your Training Squad Membership and unlock the full benefits associated with your Training Squad Membership Plan.
Endure IQ reserves the right to change its prices for the Membership Plans at any time PROVIDED no increases in prices will be effective for any Membership Plan that has already commenced.
In addition to termination for failure of payment, any Membership Plan and/or this Agreement may be terminated by either you or Endure IQ at any time, for any or no reason, effective immediately.
In the event of a termination by you other than on the renewal date of a Membership Term,
- you will continue to have full access to Endure IQ Resources for the remainder of the then-current Membership Term, however, any training sessions or plans back-dated prior to the then-current Membership Term, scheduled beyond the end of the then-current Membership Term, or sessions or plans that have been included in the Membership Term but not completed with relevant activity data will be cancelled and removed immediately upon termination. This cancellation will not delete any of your completed activity data.
- there will be no refunds, discounts or credits for amounts paid with respect to any portion of the then-current Membership Term remaining after the effective date of termination regardless of reason including physical or psychological inability to continue training.
At the conclusion of the Membership Term during which you request termination,
- you will not be billed for any recurring Membership Fees; and
- you will no longer have access to Endure IQ Resources including any training sessions or plans back-dated prior to the Membership Term, scheduled beyond the end of the then-current Membership Term, or sessions or plans that have been included in the Membership Term but that have not been completed with relevant activity data .
In the case of a termination of a Membership Plan by Endure IQ due to a breach by you of this Agreement, Endure IQ reserves the right to immediately suspend or cease access to Endure IQ Resources and/or claim additional damages as Endure IQ determines to be appropriate and warranted.
3.3 ONE-ONE-ONE COACHING
Endure IQ facilitates connecting athletes with coaches for the purpose of one-on-one coaching and individualized training programs. If an athlete chooses to take up the one-on-one coaching service, the agreement will be held between the coach and the athlete. Endure IQ’s terms and conditions in relation to this service are set out below under Section 3.3. Endure IQ’s role within this facilitation of one-on-one coaching is limited to: 1) connecting athletes with preferred coaches through an online enquiry form on our website, 2) managing payments once an agreement between coach and athlete has been signed, and 3) monitoring standard of service provided to Coached Athletes through optional feedback invites.
Once your preferred coach and yourself have agreed to proceed with a Coaching Plan, as a Coached Athlete, you will receive the inclusions and benefits provided as per your individual written agreement with your coach.
The first payment for any Coaching Plan will be for the partial period commencing on the Training Commencement Date and continuing until the end of the respective Coaching Plan period. Thereafter, the Coaching Plan will renew (unless terminated by you) and the credit card provided shall be charged the Coaching Fee as specified for the Coaching Plan you selected. In the event the payment method provided is declined, Endure IQ will notify you and you will have the opportunity to provide an alternative method of payment within Five (5) business days of notice of decline. If a payment is not successfully processed, your coach will be notified, and it will be at your coach’s discretion as to whether access to the services and features in your Coaching Plan and Training will be terminated until payment has been made.
If you terminate a Coaching Plan other than at the end of its term, there will be no credits or offsets for the portion of the then-current Coaching Fee Term.
A valid credit card is required on which we will charge the Coaching Fee. Endure IQ utilizes state-of-the-art encrypted security measures (including but not limited to username and password protections) to protect your Personal Information.
All financial aspects will be handled by Endure IQ and any questions, concerns, issues Athlete may have regarding such issues should be directed exclusively to Endure IQ, Ltd. (“Endure IQ”).
By becoming a Coached Athlete, you acknowledge that access to your Training Calendar operates through Today’s Plan (unless otherwise arranged and agreed within your agreement with your coach) and you will be required to accept Today’s Plan terms and conditions and create a Today’s Plan account.
3.3.1 INTELLECTUAL PROPERTY RIGHTS
Coaches may choose to provide Coached Athletes with the available Endure IQ Resource of Training Plans and Workouts from the Endure IQ Training Plan Library and Endure IQ Workout Library which are the sole and exclusive property of Endure IQ. The Coached Athlete shall not copy, reproduce, broadcast, distribute, post, share or make any use of these (or any other Endure IQ Materials or Resources provided by the Coach) other than for Coached Athlete’s personal use and for the purpose of the Training.
3.3.2 REPRESENTATIONS AND WARRANTIES
Athlete represents and warrants that, in addition to those set out in Section 6, that at the time of purchase and at all times throughout the Term:
a) Athlete acknowledges and agrees that the Services are provided solely by Coach and that the Training is a direct relationship between Athlete and Coach which Endure IQ does not supervise or direct, and for which Endure IQ has no responsibility.
b) Athlete acknowledges that Endure IQ has not conducted any medical, physical, psychological or other evaluation of Athlete prior to commencement of Athlete’s Training with Coach, and that both Endure IQ and Coach are relying on Athlete’s representation and warranty that Athlete has consulted his or her physician in determining Athlete’s ability to participate in the Training.
Athlete has medical insurance coverage appropriate for participation in the Training and Athlete understands and agrees that neither Endure IQ or Coach will provide any insurance in connection with Athlete’s participation in the Training.
3.3.3. ASSUMPTION OF RISK AND WAIVER
Athlete expressly releases and discharges Endure IQ, Coach, their respective Affiliates and their respective officers, directors, shareholders, members, owners, managers, employees, agents and contractors (including other coaches) (collectively, the “Releasees”) from any and all claims or causes of action and you agree to voluntarily give up or waive any right that you may otherwise have to bring a legal action against Endure IQ Releasees for personal injury, property damage or any other cause of action. This waiver and release of liability includes, without limitation, any injury and/or damages from any cause whatsoever including but not limited to any negligent instruction or supervision by Coach.
In the event of termination by Endure IQ or Coach other than at the end of a Coaching Plan period, Athlete shall receive a refund of Coaching Fee paid and apportionable to the unexpired portion of such Coaching Plan period. In the event of termination by Athlete effective other than at the end of a Coaching Plan period, Athlete shall not be entitled to any refund or reimbursement of Coaching Fee paid.
Upon the Termination Effective Date, Athlete shall have access to such Program Materials as were used by Coach in the Training prior to the Termination Effective Date, but not to any other Program Materials.
4. Your Use of the Site.
- Your Responsibilities. You will (a) be responsible for your compliance with this Agreement, (b) use reasonable efforts to prevent unauthorized access to the Course(s) and Endure IQ Resources and notify Endure IQ promptly of any such unauthorized access or use, and (c) use the Site only in accordance with the Documentation and all applicable laws and regulations, including, without limitation, applicable export control laws and regulations. You are solely and exclusively responsible for the security of the usernames and passwords issued to you. Endure IQ shall be entitled to rely on the authority of any person using the username and password in providing information to and taking all actions that the authorized user would be entitled to take or direct.
- Restrictions. You will not (a) make the Course(s) or the Endure IQ Resources available to, or use the Site, Course(s) or the Endure IQ Resources for the benefit of, anyone other than yourself, (b) sell, resell, license, sublicense, distribute, rent, or lease the Course(s) or the Endure IQ Resources, or include the Course(s) or the Endure IQ Resources in a service bureau or outsourcing offering, (c) use the Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Site to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Site or any third-party data contained therein, (f) attempt to gain unauthorized access to the Endure IQ Resources or any related systems or networks, (g) permit direct or indirect access to or use of the Endure IQ Resources in a way that circumvents a contractual usage limit, (h) copy the Endure IQ Resources or any part, feature, function, or user interface thereof, (i) frame or mirror any part of the Endure IQ Resources other than as permitted in the Documentation, (j) access, record or copy the Endure IQ Resources in order to build a competitive product or service, or (k) reverse engineer, disassemble or decompile the Endure IQ Resources.
5. Your Representations and Warranties
You represent and warrant the following:
- You are eighteen (18) years of age or older.
- If you are an Enrollee, Member, or Coached Athlete, you are accessing the Course(s) and Endure IQ Resources exclusively for your personal use and self-improvement in athletic endurance performance, with no intent to broadcast, republish, misrepresent, edit, copy, display or in any way use the Endure IQ Resources for any purpose other than your personal use and self-improvement in athletic endurance performance.
- If you are an Enrollee, Member, or Coached Athlete, you have consulted your physician and have been advised that there are no physical, psychological or other conditions that would limit your participation in and training for endurance sports or that would increase or create a risk of injury to you by your participation in and training for endurance sports.
For the purposes of this Agreement, “Confidential Information” means any business or technical information that either Party discloses to the other Party, in writing, orally or by any other means, that should reasonably have been understood by the receiving Party due to “confidential” and similar markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other Party, including, without limitation, computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. Neither Party will use the other Party’s Confidential Information, except as permitted under this Agreement. Each Party agrees to maintain in confidence and protect the other Party’s Confidential Information using at least the same degree of care as such Party uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to such Party’s employees, independent contractors, consultants and legal and financial advisors (collectively, “Representatives”) (a) with a need to know such information, (b) who are parties to appropriate agreements sufficient to comply with this Section and (c) who are informed of the nondisclosure obligations imposed by this Section. Each Party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable them to contest such order or requirement. The restrictions set forth in this Section shall remain in effect for five (5) years. The restrictions set forth in this Section will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party who has a right to disclose it; (iii) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; or (iv) the receiving Party independently develops without access to or use of the other Party’s Confidential Information.
Your Confidential Information expressly includes the Personal Information. We follow generally accepted best practices to safeguard the Personal Information. We conduct background checks on and have confidentiality agreements with all personnel who have or may have access to the Personal Information, including but not limited to those in technical support.
Endure IQ shall implement and maintain appropriate measures in accordance with generally accepted industry standards to (i) protect against any anticipated threats or hazards to the security or integrity of the Personal Information; and (ii) protect against unauthorized access to the Personal Information.
In addition to Endure IQ’s Confidential Information, Endure IQ owns all rights, title and interest in and to the Endure IQ Resources and any trademarks, copyrights, trade secrets and inventions, whether or not any of the foregoing are registered, and any ideas, suggestions, proposals, research or test results obtained through, from or as a result of your use of the Endure IQ Resources. Your rights to the Endure IQ Resources are limited to the rights expressly granted to you in this Agreement. Accordingly, you shall not use the Endure IQ Resources in any manner except as provided herein. Endure IQ reserves all rights not expressly granted in this Agreement. You agree that you shall not attempt to claim, register or protect any interest in or to the Endure IQ Resources.
If you send comments or suggestions about the Endure IQ Resources to us, including, but not limited to, notes, text, drawings, images, designs or computer programs, such submissions shall become, and shall remain, the sole property of Endure IQ. No such submission shall be subject to any obligation of confidence on the part of Endure IQ. We shall exclusively own all rights to (including intellectual property rights thereto), and shall be entitled to unrestricted use, publication, and dissemination as to all such submissions for any purpose, commercial or otherwise without any acknowledgment or compensation to you.
- Endure IQ’s Indemnification Obligation. Endure IQ will defend or settle, at its option and expense, any third-party claim brought against you to the extent that it is based on an allegation that your use of the Endure IQ Resources as permitted under this Agreement infringes a patent, copyright, or trademark or misappropriates a trade secret of any third-party (each, a “Claim”), and, subject to Section 12, Endure IQ will pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that you notify Endure IQ in writing of any such Claim as soon as reasonably practicable and allows Endure IQ to control, and reasonably cooperates with Endure IQ in the defense of, any such Claim and related settlement negotiations.
- Exclusions. You understand that Endure IQ has no obligation to indemnify you for any Claim that is based on (i) modification of the Endure IQ Resources by any party other than Endure IQ; (ii) your use of the Endure IQ Resources other than as authorized by this Agreement and the Documentation or in violation of your representations and warranties; (iii) access to the Course(s) and/or use of the Endure IQ Resources by any person other than you who uses your username and password; or (iv) your failure to stop using the Endure IQ Resources after receiving written notice to do so from Endure IQ in order to avoid further infringement or misappropriation (subparts (i)-(iv) are referred to collectively as “Indemnity Exclusions”).
- Right to Ameliorate Damages. If your use of the Endure IQ Resources is, or in Endure IQ’s reasonable opinion is likely to be, subject to a Claim under Section 9.1, Endure IQ may, at its sole option and at no charge to you (and in addition to Endure IQ’s indemnity obligation to you in Section 9.1) (i) procure for you the right to continue using the Endure IQ Resources; (ii) replace or modify the Endure IQ Resources so that it is non-infringing and substantially equivalent in function to the original Endure IQ Resources; or (iii) if options (i) and (ii) above are not commercially practicable in Endure IQ’s sole determination, Endure IQ can terminate this Agreement and all licenses granted hereunder (in which event, you will immediately stop using the Endure IQ Resources) and refund the Enrollment Fees that you paid which are allocable to the infringing c(1).
- Your Indemnification Obligation. Except to the extent that Endure IQ is obliged to indemnify you in Section 9.1 above, you will defend, indemnify and hold Endure IQ harmless from and against any claims that may arise out of or be related to or connected with (i) any breach of your representations and warranties, (ii) your use or misuse of the Endure IQ Resources (including but not limited to collection, transmission and processing of the Personal Information), (iii) use or misuse of the Endure IQ Resources by any person other than you who accesses the Course(s) or Endure IQ Resources using your username and password (including, without limitation, any Indemnity Exclusion), or (iv) any personal injury or property damages to you or anyone else resulting from or relating to your training whether or not based on the Course(s) and/or Endure IQ Resources. For purposes of this section, any reference to Endure IQ shall include Endure IQ’s Affiliates, shareholders, directors, officers, employees, agents and contractors. For purposes of this Agreement, an “Affiliate” means an entity person, natural or legal, that (a) is owned or controlled, directly or indirectly, by Endure IQ, (b) owns or controls, directly or indirectly, Endure IQ or (c) is under common control as Endure IQ.
- Sole Remedy. This Section sets forth Endure IQ’s sole and exclusive obligations, and your sole and exclusive remedies, with respect to claims of infringement or misappropriation of third-party intellectual property rights.
Endure IQ provides the endure iq assets on an “as is” and “as available” basis. To the extent permitted by law, endure iq disclaims all warranties, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and those arising out of course of dealing, usage or trade.
11. Assumption of Risk and Waiver
You acknowledge and understand that endurance sports, like any sport, has inherent risks of bodily injury which risks are magnified when combined with pushing one’s body to extreme limits.
You expressly and unconditionally assume any risks and waive any and all claims against Endure IQ, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions, and regardless of the source or the cause of the issue including but not limited to failures of third-party sites or applications with which the Endure IQ Resources interact:
- any personal injury to you or anyone else, whether as an athlete, other participant, user or spectator, relating to, caused by or connected to any activity or product depicted in the Endure IQ Resources (including but not limited to third-party sporting equipment and dietary supplements);
- any damage to property of yours or anyone else’s relating to, caused by or connected to any activity or product depicted in the Endure IQ Resources;
- any unauthorized person uses your username and/or password to access the Endure IQ Resources with any result, including but not limited to making changes in authorizations;
- the Endure IQ Resources are partially or totally inoperative or inaccessible;
- use of the Endure IQ Resources;
- viruses or other malicious software are transferred to your computer or other device by using the Endure IQ Resources;
- there are bugs, errors or inaccuracies in the Endure IQ Resources;
- third-party content, actions or inactions on or with respect to the Endure IQ Resources;
- a suspension or other action taken with respect to your account by Endure IQ; or
- deletion, corruption or destruction of any of the Personal Information.
No waiver by Endure IQ of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by Endure IQ in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
For purposes of this section, any reference to Endure IQ shall include Endure IQ’s Affiliates, shareholders, directors, officers, employees, agents and contractors.
12. Limitation of Liability
To the extent permitted by law, in no event shall Endure IQ have any liability to you for any indirect, special, incidental, punitive, or consequential damages (including for loss of profit, revenue, or data) arising out of or in connection with the Site or this Agreement, however caused, and under whatever cause of action or theory of liability brought (including under any contract, negligence, indemnification or other tort theory of liability) even if advised of the possibility of such damages. To the extent permitted by applicable law, Endure IQ’s total cumulative liability to you or any third-party arising out of or in connection with the Site or this Agreement, from all causes of action and all theories of liability, will be limited to and will not exceed the greater of the Enrollment Fees (if you are an Enrollee), Membership Fees (if you are a Member), or Coaching Fees (if you are a Coached Athlete) paid by you during the Twelve (12) months immediately preceding the claim or One Hundred Dollars ($100.00). The Parties agree that this Section represents a reasonable allocation of risk.
13. Governing Law and Venue
This Agreement will be governed by and interpreted in accordance with the laws of New Zealand, without giving effect to any principles of conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Auckland, New Zealand, and the Parties irrevocably consent to personal jurisdiction and venue therein. If any Party incurs costs or expenses including but not limited to reasonable attorneys’ fees in connection with an action relating to the terms of and performance under this Agreement, the prevailing Party in such an action shall be entitled to recover its costs and reasonable attorneys’ fees incurred.
You agree that you may bring a claim against Endure IQ only in your capacity as an individual User, not as the member of or participant in any group or class.
Each party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right that it may have to trial by jury of any claim or cause of action, or in any legal proceeding, directly or indirectly based upon, relating to or arising out of this agreement, use of the site, use of the member resources or participation in any of the actrivities or use of any of the products included or depicted in the site (whether based on contract, tort or any other theory). Each party (a) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other party have been induced to enter into this agreement by, among other things, the mutual waivers and certifications in this section. Each party hereto consents to service of process by certified mail at its address listed herein.
- Independent Contractors. Endure IQ is and will be deemed to be an independent contractor with respect to you in regard to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Endure IQ and you.
- Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise. Endure IQ may assign this Agreement, in part or whole, inclusive of the Personal Information and personal account information, without your consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Amendment. Endure IQ may amend this Agreement at any time, in its sole and absolute discretion; provided any changes in this Agreement shall be binding upon Enrollees only upon Enrollment in a Course subsequent to such amendment or upon Members only upon renewal of his/her Membership Plan. You will be notified of such change(s) by email. Your continued use of the Endure IQ Resources after the effective date of any such amendment shall be conclusive evidence of your consent to be bound by such amendment.
- Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failure, governmental orders (including but not limited to quarantines and business closures) and power failures.
- Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid addressed as follows, or to such other address as such Party may notify to the other Party in writing:
To Endure IQ:
9 Willis Street
Auckland, New Zealand
Email: [email protected]
Current Contact: K. Plews
Notices, demands or requests which either Party is required or desires to give the other hereunder shall be deemed to have been properly given for all purposes if (A) hand-delivered to the Party's notice address, (B) mailed by express, registered or certified mail of a national postal service, return receipt requested, postage prepaid, or (C) delivered to a nationally recognized overnight courier service for next business day delivery, to its addressee at such Party's notice address. Each such notice, demand or request shall be deemed to have been received upon the earlier of (i) actual receipt or refusal by the addressee if hand-delivered in accordance with clause (A) above, or (ii) three (3) business days after deposit thereof at any main or branch post office, if sent in accordance with clause (B) above, or the next business day after deposit thereof with the courier, if sent pursuant to clause or (C) above. The parties shall notify the other of any change in address, which notification must be at least two (2) business days in advance of it being effective. Notices may be given on behalf of any Party by such Party's legal counsel. For a notice to be valid, an email copy shall accompany each of the foregoing modes of noticing a Party. An email notice, by itself, shall suffice as notice at such time as the sender receives a receipt acknowledgment or the recipient replies, directly or indirectly, to such notice.
By registering on the Site, enrolling in a Course, joining the Training Squad, or accepting One-on-One Coaching, you expressly consent to receive any notices, announcements, agreements, disclosures, reports, documents, communications concerning new products or services, or other records or correspondence from Endure IQ, its Affiliates and third-parties with which Endure IQ does business. You consent to receive notices electronically by email, text or other messaging service.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
- Section Headings. Section headings are included for ease of reference only and have no binding effect.
- Interpretation. You acknowledge and agree that you had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any Party as the drafter. This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
- Headings The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
- Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement.
- Survival. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 2, 4.2 and 6-14.
Terms and Conditions: Updated April 15th 2021