End User Terms of Use

1. Definitions. For purposes of these Terms of Use, the following terms have the following meanings:
   1. “Documentation” means user manuals, technical manuals, and any other materials provided by OTO, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software or Hardware.
   2. “Hardware” means wearable devices and other hardware provided and/or sold by OTO and being used by User as necessary to enable the functionality of the Software.
   3. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
   4. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
   5. “Personal Data” means any data or information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.
   6. “Representative” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
   7. “Software” means the software program(s) for which User is being granted usage rights (including without limitation, “OTO” and “TFC”).
   8. “Term” has the meaning set forth in Section 8.1.
   9. “Third Party” means any Person other than User and OTO.
2. Usage Right and Scope. Subject to and conditional on User’s strict compliance with all terms and conditions set forth in these Terms of Use, OTO hereby grants to User a non-exclusive, non-transferable, non-sublicensable, limited right while these Terms of Use are in effect between User and OTO, to use the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in these Terms of Use. This usage rights granted to User include the right to:
   1. Download and install in accordance with the Documentation one (1) copy of the Software on one (1) device owned or leased, and controlled by, User.
   2. Use and run the Software as properly installed in accordance with these Terms of Use and the Documentation, solely as set forth in the Documentation and not for any commercial purposes.
   3. Download or otherwise make one (1) copy of the Documentation in accordance with these Terms of Use and use such Documentation solely in support of its usage rights of the Software in accordance herewith. All copies of the Documentation made by User:

      (a) will be the exclusive property of OTO;
      (b) will be subject to the terms and conditions of these Terms of Use; and
      (c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

3. Use Restrictions
   1. User shall not directly or indirectly:

      (a) use (including make any copies of) the Software or Documentation beyond the scope of the rights granted under Section 2;

      (b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of User, with access to or use of the Software or Documentation;

      (c) except as expressly set forth in Section 2.1 and Section 2.3, copy the Software or Documentation, in whole or in part;

      (d) modify, correct, translate, adapt, enhance, further develop, or otherwise create derivative works, enhancements or improvements, whether or not patentable, of the Software, Hardware or Documentation or any part thereof;

      (e) combine the Software or Hardware or any part thereof with, or incorporate the Software or Hardware or any part thereof in, any other programs;

      (f) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

      (g) reverse engineer, disassemble or decompile the Hardware;

      (h) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy provided on or with the Software, Hardware or Documentation, including any copy thereof;

      (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, Hardware or Documentation, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud, or other technology or service;

      (j) use the Software, Hardware or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage including:

      (i) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
      (ii) military or aerospace applications, weapons systems, or environments;

      (k) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any Person, or in violation of any applicable law, regulation, or rule;

      (l) use or rely on the Software (including without limitation, any activity plan prepared, suggested or made available through the Software) or Documentation as a substitute for medical advice; or

      (m) use the Hardware in or around liquids (e.g. while swimming or exposed to rain) or use the Hardware after it has come into contact with liquids.

   2. No Implied Rights. Except for the limited rights expressly granted under these Terms of Use, nothing in these Terms of Use grants to User or any third party any Intellectual Property Rights or license, nor other right, title, or interest in or to the Software or Documentation.
4. Responsibility for Use of Software and Hardware. User is responsible and liable for all uses of the Software, Hardware and Documentation, including uses via OTO’s systems or applications. Specifically, User is responsible and liable for all actions (and/or failures to take required actions) with respect to the Software, Hardware and Documentation by any Person to whom User may provide access to or use of the Software, Hardware or Documentation, whether such access or use is permitted by or in violation of these Terms of Use.
5. Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. User shall not, and shall not attempt to, remove, disable, bypass, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
6. Collection and Use of Information
   1. User acknowledges that OTO may, directly or indirectly through the services of Third Parties, collect and store data and information (including User’s Personal Data) about the User. OTO’s collection, use, and disclosure of Personal Data is governed by OTO’s Privacy Notice, available at oto.coach/privacy. OTO reserves the right to anonymize and aggregate Personal Data for its legitimate business purposes, as also described in the Privacy Notice.
   2. In conjunction with the uses stipulated in the Privacy Notice, and for greater certainty, User agrees that OTO may use such information to verify User’s compliance with the terms of these Terms of Use and enforcing OTO’s rights, including all Intellectual Property Rights in and to the Software.
7. Intellectual Property Rights
   1. User acknowledges and agrees that that all right, title, and interest in and to the Software and Documentation are owned by OTO.
   2. User does not acquire any ownership interest in the Software or Documentation under these Terms of Use, or any other rights thereto, other than to use the same in accordance with the usage rights granted under these Terms of Use and subject to all terms, conditions, and restrictions under these Terms of Use.
   3. OTO and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software and Documentation. User shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
   4. User shall promptly notify OTO if User becomes aware of any infringement of OTO’s Intellectual Property Rights in the Software and Documentation and fully cooperate with OTO, at OTO’s sole expense, in any legal action taken by OTO to enforce its Intellectual Property Rights.
8. Termination
   1. These Terms of Use and the usage rights granted hereunder shall remain in effect until User ceases to use the Hardware and Software, and permanently deletes all copies of the Software and Documentation.
   2. OTO may terminate User’s access to the Software without notice to User if User breaches these Terms of Use.
   3. Upon termination of these Terms of Use, the usage rights granted shall also terminate, and User shall cease using (and destroy all copies of) the Software and Documentation in its possession or control.
   4. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms of Use that, by its nature, should survive termination of these Terms of Use, will survive any termination of these Terms of Use: Section 1, Section 6, Section 7, Section 8.2, Section 8.3, Section 9, Section 10, and Section 11.
9. Warranty Disclaimer
   1. THE SOFTWARE (INCLUDING WITHOUT LIMITATION, ANY ACTIVITY PLAN PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE SOFTWARE), HARDWARE AND DOCUMENTATION ARE PROVIDED TO USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OTO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE (INCLUDING WITHOUT LIMITATION, ANY ACTIVITY PLAN PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE SOFTWARE), HARDWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OTO PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE (INCLUDING WITHOUT LIMITATION, ANY ACTIVITY PLAN PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE SOFTWARE) OR HARDWARE WILL MEET THE USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
   2. USER EXPRESSLY ACKNOWLEDGES THAT THE USE OF THE SOFTWARE (INCLUDING WITHOUT LIMITATION, ANY ACTIVITY PLAN PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE SOFTWARE), HARDWARE AND DOCUMENTATION IS AT THE SOLE RISK OF USER.
10. Limitation of Liability.
    1. IN NO EVENT WILL OTO OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE OR HARDWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT DATA OR INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT DATA OR INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; (x) PERSONAL INJURY OR DEATH RESULTING FROM OR RELATED TO USE OF THE SOFTWARE (INCLUDING WITHOUT LIMITATION, ANY ACTIVITY PLAN PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE SOFTWARE), HARDWARE OR DOCUMENTATION; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT OTO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF OTO AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $200 CAD TO THE USER.
11. Miscellaneous
    1. Governing Law. These Terms of Use and all related matters are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
    2. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to these Terms of Use shall be brought by in the courts of the Province of Ontario, and Users irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Users waive any objection to the venue of any action or proceeding in such courts, including that they are not a convenient forum.
    3. Entire Agreement. These Terms of Use and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between User and OTO with respect to the end uses of the OTO Software and Hardware, overriding any previous understandings or agreements.
    4. Assignment. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms of Use, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without OTO’s prior written consent, which consent OTO may give or withhold in its sole discretion. No delegation or other transfer will relieve User of any of its obligations or performance under these Terms of Use. Any purported assignment, delegation, or transfer in violation of this Section 11.4 is void. OTO may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under these Terms of Use without User’s consent. These Terms of Use are binding upon and ensure to the benefit of the parties hereto and their respective permitted successors and assigns.
    5. Amendments and Modifications. These Terms of Use may be amended or modified by OTO in its sole discretion, and User’s continued use of the Software or Documentation shall be deemed to be User’s conclusive acceptance of such amendment or modification. These Terms of Use, including any future amendments or modifications hereto, are also available at oto.coach/terms.
    6. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms of Use, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms of Use shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    7. Severability. If any term or provision of these Terms of Use is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction.