- Introduction, Definitions, and Acceptance
“Apparel” refers to either the OM Smart Shirt or OM Smart Bra which you wear while using the Services, and forms an integral part thereof.
“Device” refers to the handheld device or Apple Watch onto which you downloaded an Application and are using as part of the Services.
“OMbox” refers to the hardware device that keeps track of certain biometric information during your workouts and everyday life, and forms an integral part of the Services.
“OMsignal” refers to OMSignal Inc., a duly incorporated company in the province of Quebec, Canada. Where the present TOU refer to “OMsignal”, it may refer to OMsignal or its employees, officers, directors, subcontractors, agents or representatives, and its affiliates or subsidiaries, depending on the context. Any reference to “we”, “our”, or “us” in these TOU shall also refer to OMsignal. In these TOU, a Website visitor or Services user may be referred to as “you”. When a Services user has created an account and is logged in to the Services or their Personal Website, they may be referred to as a “Logged-in User”. If you make a purchase of Products on the Website, you may be referred to as a “Customer”.
“Product” refers to any product available for purchase on the Website, including Apparel, the OMbox, and combinations thereof.
“Services” are the combined hardware and software services that OMsignal has developed to help you achieve your fitness goals by tracking your workout information. The Services include the use of an Application, a piece of Apparel and the OMbox in combination.
“Website” is the website located at https://omsignal.com/ which is owned and operated by OMsignal, and includes all subdomains, present and future. Without limiting the generality of the foregoing, the Website includes the subdomain of your “Personal Website” at the URL http://user.omsignal.com/, which shall also be personalized with your username.
By visiting or using the Website, using the Services, or downloading, using or accessing an Application on your Device, you hereby accept to be bound by these TOU without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the TOU, you are not authorized to use the Website or Services. If you have downloaded an Application and do not agree to all the provisions of the TOU, you must delete the Application from your Device. The TOU are a legal and binding agreement between you and us.
In the context of an Application, these TOU may also be referred to as, and are equivalent to, an “End User License Agreement” or “EULA”.
OMsignal reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website and / or Services following the posting of any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect your relationship with us, you will be notified via the email associated with your Account.
If you have any questions about the TOU, please contact:
OMsignal Legal Services
OMsignal Legal Services
3700-75 rue Queen
- General Code of Conduct for Use of the Website or Services
By visiting or using the Website and / or using the Services, you agree to:
(i) Not use the Website or Services in any manner that in any way violates these TOU;
(ii) Not use the Website or Services in any manner that violates any intellectual property rights of OMsignal or any third party;
(iii) Not use the Website or Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
(iv) Not use the Website or Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to OMsignal or a third party, or to damage or obtain unauthorized access to any system, data, or other information (whether Personal Information or not) of OMsignal, other Services users, or any other third party;
(v) Not: (1) take any action that imposes or may impose (as determined by OMsignal in its sole discretion) an unreasonable or disproportionately large load on OMsignal’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or Services or any activities conducted on the Website or through the Services; (3) bypass any measures OMsignal may use to prevent or restrict access to the Website or Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website or Application; or (5) harvest or scrape any content from the Website or Application in an unreasonable manner;
(vi) Use the Website and / or Services in good faith and in compliance with all applicable local, provincial, national, and international laws.
- Use of Applications, Licenses and Restrictions
- Accessing and Downloading an Application from the Apple iTunes Store, and Related Acknowledgements
i. You acknowledge that updates to an Application are subject to the approval of Apple, and OMsignal, its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”) shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.
6. Accounts, Passwords and Logged-in Users
a. Basic Account Information and Passwords
As part of the account registration, you will be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session of the Services or on your Personal Website, or not leave a logged-in account unattended for any period of time. OMsignal and its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services or your Personal Website with your account information and accessing your account through any means, and disclaims any responsibility in this regard.
OMsignal reserves the right to terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU, as more further described hereinbelow.
b. Social Networking Services Accounts
You may link your account with certain third-party social networking services (a “SNS Account”) by either (1) providing your SNS Account login information to OMsignal; or (2) allowing OMsignal to access your SNS Account, if either or both methods of access are permitted under the applicable terms and conditions that govern your use of each SNS Account. You represent that you are entitled to disclose your SNS Account login information to OMsignal and grant OMsignal access to your SNS Account without breach by you of any of the terms and conditions that govern your use of the applicable SNS Account and without obligating OMsignal to pay any fees or making OMsignal subject to any usage limitations imposed by such third party service providers. Please note that your relationship with the social networking service providers associated with your SNS accounts is governed solely by your agreements with such social networking service providers.
- Description and Authorized Use of the Services and Medical and Health Disclaimers
a. Use of the Services
Once you own the Apparel and OMbox, use of the Services is free of charge, and subject only to your responsibilities as laid out in this section and elsewhere in these TOU. Where you are using an Application on a Device, you shall be responsible for any data charges incurred from your wireless carrier or other data provider associated with the use of the Application, if applicable.
By using the Services, you acknowledge and agree that:
- You are at least 18 years of age or the age of majority in your jurisdiction; and
- You are not suffering from any health-related condition or disease which would be adversely affected by using the Services.
b. Medical and Health Disclaimers Regarding the Website and Services
The following disclaimers are made notwithstanding the generality of the Disclaimer of Warranties and Limitation of Liability sections found further in these TOU, and are intended to supplement and clarify those sections.
OMsignal does not offer medical advice. Any content accessed through the Website or Applications or Products purchased are for informational and educational purposes only and are not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects. The content or Products or the Services should not be used during a medical emergency or for the diagnosis or treatment of any medical condition. Please consult your doctor or other qualified healthcare provider if you have any questions about a medical condition, or before taking any drug, changing your diet, or commencing or discontinuing any course of treatment. Do not ignore or delay obtaining professional medical advice because of information accessed through the OMsignal Website or Applications. Call 911 or your doctor for all medical emergencies.
You understand that the Services, including, but not limited to, the Apparel, OMbox and Application, are not designed, intended, authorized, or warranted to be suitable for use in the following “Unauthorized Applications”: primary health monitoring, life support applications, devices or systems; direct life support machines; military or space equipment requiring radiation hardened components; and Enhanced 911 or the E911 emergency calling systems. You warrant that you will not use the Services for or with any Unauthorized Applications, and you further agree to, without limitation, defend, indemnify, and hold harmless OMsignal and its Representatives from and against any and all claims, suits, actions, proceedings, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with your breach of this sub-section 7b. of these TOU. You further acknowledge and agree that OMsignal has no obligation to monitor your use of the Services or any vital signs, or biometric information, or any other information uploaded by or through the Services to OMsignal’s servers, and that the OMsignal has no obligation to take any action in response to such information.
Exercising may include some risks and training results will vary. You should consult a qualified medical professional (and, if you are pregnant, an ob-gyn) before starting to use the Services or any fitness program. Not all exercise plans are suitable for everyone. Immediately discontinue any exercise that causes you pain, severe discomfort, excessive fatigue, nausea, dizziness, or shortness of breath and consult a medical professional. Start slowly and at the level that is appropriate for you.
The Application training suggestions:
- are in no way intended to be a substitute for professional medical consultation or personal training; and
- should not be viewed as medical advice.
OMsignal and its Representatives assume no responsibility for personal injury or property damage sustained by or through the use of the Services or the training suggestions in the video. OMsignal does not guarantee any training results from the use of this video or our Products or the Services, although proper use of the training suggestions will increase the likelihood of achieving your fitness goals.
OMsignal Products and the Services are not intended to diagnose, cure, mitigate, treat or prevent any disease or other health condition. In addition to training intensity, the data provided by the OMsignal Products and the Services may be affected by a variety of other factors, including for example, medications for heart conditions, blood pressure, psychological conditions, asthma, breathing, etc., as well as some energy drinks, alcohol, and nicotine.
We recommend you do not use the Services during contact or combat sports or activities such as, but not limited to, football, hockey, boxing, martial arts, rugby, wrestling and other such sport. Although the Services may be capable of following you during such contact or combat sports and activities, there are risks of serious injuries in case of heavy contact with the OMbox and connectors, and it may injure other players and opponents in case of heavy or violent contacts. In addition, the practice of contact or combat sports and activities involve risk of serious injuries, disabilities or even death, with or without the use of the Product. Not all risks are foreseeable. If, despite having been cautioned against such use, you choose to use the Product in any contact or combat sports and activities, you understand that OMsignal and its Representatives shall not be liable for any injury, death, property damage, or for special, incidental or consequential damages alleged to be caused in whole or in part by Apparel or the OMbox or the use of the Services, and you hereby release and waive any claims, in law or equity, that you may otherwise have against OMsignal and its Representatives in connection with such injury, death or damage.
- Purchases of Products on the Website
If you are making a purchase of a Product on the Website, you declare being above 18 years old or the age of majority in your jurisdiction and having the legal capacity to make a purchase, including the capacity to use any credit card used for the purchase. Any Product ordered shall remain our property until you fulfill all your obligations towards us, namely until the full payment of the price, plus any taxes, interest or additional charges as applicable.
Descriptions, images, references, features, content, specifications, products, prices and availability of Products are subject to change without notice. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, provincial, state, federal, and international laws in regard to the possession, use, and sale of any Product purchased through the Website. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to bar any user from making any or all purchases; and to refuse to provide any user with any Product.
a. Payment Processing
All purchases of Products made through the Website are processed using a secure https:// connection, and payment processing is handled through the online payment processor Shopify.
OMsignal via Shopify currently accepts Visa, MasterCard and AmEx as payment options, but this is subject to change without notice. Once transactions are accepted by Shopify, they are processed in accordance with Shopify’s program rules and procedures and Terms of Service for payments, which we encourage you to read. OMsignal and Shopify are unaffiliated companies and OMsignal has no influence on the operations of Shopify. OMsignal shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of Shopify.
b. Prices and Taxes
All prices of Products are firm and in U.S. dollars that may be converted to other currencies by Shopify at the time of payment processing, depending on your country of origin and / or credit card account agreement. Prices are displayed on the individual product page and are subject to change without notice. Pricing does not include sales taxes as applicable, which shall de displayed during the checkout process, depending on your location. Prices are exclusive of all others costs including additional shipping options, which shall be noted during the checkout process. If you have a valid coupon or discount code, it shall be applied and displayed during the checkout process.
In the event that a Product is mistakenly listed at an incorrect price or an incorrect discount is applied, OMsignal reserves the right to refuse or cancel any orders placed listed at the incorrect price or at an incorrect discount. OMsignal reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and the Customer's credit card charged. If the Customer has already been charged for the purchase and the order is cancelled, OMsignal shall issue a credit to the credit card used to make the purchase in the amount of the incorrect price (plus any taxes and / or additional fees as applicable).
c. Customs Duties and Foreign Taxes
Orders for Products purchased on the Website may be subject to additional taxes and customs duties applicable upon the parcel’s arrival at a foreign (outside Canada) destination. You shall be responsible for and bear the possible customs duties and taxes related to a Product delivery that is ordered from outside Canada. OMsignal shall not be responsible for checking and informing you of the applicable customs duties and taxes in your country. Therefore, we strongly suggest that you seek this information from the competent authorities in your country when you make a purchase.
We accept your orders for Products subject to availability of inventory. If, despite of our vigilance, the Product(s) requested is/are not available, we shall inform you of their unavailability by e-mail or phone as soon as commercially possible. OMsignal shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any Product being out of stock, or the delays resulting therefrom.
e. Return Policy
Your purchase of Products is also covered by our Return Policy, which is hereby incorporated by reference in these TOU as if recited at length.
f. Product Warranty
Your purchase and use of Products (and use of the Services related thereto) is also covered by the OMsignal Product Warranty, which is hereby incorporated by reference in these TOU as if recited at length.
- Proprietary Rights
You acknowledge that: (a) the Applications, OMbox, Apparel and Website contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) OMsignal and/or third parties own all right, title and interest in and to the Application, OMbox, Apparel and Website and content that may be presented or accessed through the Services and Website, including without limitation all Intellectual Property Rights therein and thereto. The Application and Firmware is being licensed to you and you hereby acknowledge that no title or ownership in the Application or Firmware is being transferred or assigned and these TOU should not be construed as a sale of any rights in the Application or Firmware. All rights not specifically granted under these TOU are reserved to OMsignal and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, an Application, Firmware or Website, or content that may be presented or accessed through an Application or Website for any purpose, unless otherwise permitted; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in an Application, the Services or Website; or (iii) remove, obscure, or alter OMsignal’ or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through an Application, the Services or Website.
The content, arrangement and layout of the Website and Applications, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and computer code are proprietary to OMsignal, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of OMsignal, or as permitted by the functionality of the Website or Services or these TOU. Any unauthorized use of the content, arrangement or layout of the Website or Application, computer code, images, logos, videos, audio or trademarks found in the Website, OMbox, Apparel or Application or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and OMsignal may take action accordingly.
If you choose to communicate to OMsignal suggestions for improvements to the Website or Services (collectively, “Feedback”), OMsignal shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to OMsignal and waive in favor of OMsignal, its successors and assigns all your moral rights in the Feedback, and agree to provide OMsignal such assistance as OMsignal may require to document, perfect, and maintain OMsignal’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to OMsignal, you are not entitled to any compensation or reimbursement of any kind from OMsignal under any circumstances.
Apple and iOS are registered trademarks of Apple Inc.
- Interruption of Service
From time to time, the Website or Services may be unavailable for brief periods of time for maintenance and / or modifications to the Website or Services. While we will endeavour to make this unavailability as brief as possible, OMsignal and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website or Services, and disclaims any responsibility thereto.
- Termination of the Website or Services and the TOU
OMsignal may also, in its sole discretion and at any time, discontinue providing the Website or Services, or any part thereof, with or without notice. You agree that OMsignal shall not be liable to you or any third party for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from termination of your access to the Website or Services, or from OMsignal’s termination of the Website or Services, or any part thereof.
Termination of the Website or Services or your access to the Website or Services shall terminate the present TOU as between you and OMsignal. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
- External Links
In no way will OMsignal be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or Application or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
- Disclaimer of Warranties
You expressly understand and agree that your use of the Website or Services, the information thereon (whether provided by OMsignal or third parties) or any activity arising from your use of the Website or Services or the information thereon or the materials downloaded therefrom is at your sole risk. The Website or Services, any materials downloaded therefrom, or any third party materials, are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or Services or any other functionalities of the Website or Services, or losses or damages (financial or otherwise) resulting from (i) your use of the Website or Services, the information thereon, any materials downloaded therefrom, or (ii) any activity arising from the use of the Website or Services, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Website or Services, written or produced by OMsignal staff, freelance writers or other subcontractors are known to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website or Services is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and OMsignal shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or through the Services.
OMsignal expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Website or Services, the information thereon or any materials downloaded therefrom, and any third party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. OMsignal, and its directors, officers, employees, agents, suppliers, partners and subcontractors do not warrant that: (i) the Website or Services will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Website or Services is free of viruses or other harmful components; or (iv) the results of using the Website or Services or any content downloaded therefrom will meet your requirements.
- Limitation of Liability
OMsignal shall not be liable and assumes no responsibility for any loss or damages, pecuniary or otherwise, arising from or in relating to the information on the Website or Services or downloaded therefrom, the use of the Website or Services, activities arising from your use of the Website or Services, or any third party materials on the Website or available through the Services.
To the maximum extent permitted by law, in no event will OMsignal and / or its Representatives: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Website or Services or your use, misuse or inability to use the Website or Services, even if OMsignal has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.
Notwithstanding anything to the contrary in the TOU, in no event will OMsignal’ aggregate liability for any claims in connection with your use of the Services exceed CAD$ 100.
- Governing Laws and Jurisdiction
- Miscellaneous Provisions
- OMsignal shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond OMsignal’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation.
- OMsignal’s failure to enforce any provision of these TOU shall not be deemed a waiver of such provision nor of the right to enforce such provision.
© OMsignal Inc. 2016