End User License Agreement
YOU ARE ATTEMPTING TO DOWNLOAD, INSTALL AND/OR USE CERTAIN SOFTWARE AND INCLUDED DOCUMENTATION ASSOCIATED WITH FITIVITY (TOGETHER THE “SOFTWARE”). IF YOU DOWNLOAD THIS SOFTWARE SUBJECT TO THESE TERMS BY SIGNING IN WITH YOUR FACEBOOK OR GOOGLE ACCOUNT AND/OR USE THE SOFTWARE YOU (ON YOUR OWN BEHALF AND, IF YOU REPRESENT ANOTHER ENTITY OR ORGANIZATION, ON BEHALF OF THAT ENTITY OR ORGANIZATION AND ANY OTHER INDIVIDUALS WITHIN THAT ENTITY OR ORGANIZATION USING OR ACCESSING THE SOFTWARE) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE “AGREEMENT”), AND THIS WILL BE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND FITIVITY, INC. (“FITIVITY”).
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING THESE TERMS AND USING THIS SOFTWARE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD REJECT THEM BY NOT DOWNLOADING THE SOFTWARE AND EXITING THE INSTALLATION AND DOWNLOAD PROCESS. References to this Agreement to “you”, “your” or “User” refer to both you and any person or entity on whose behalf you act, if any.
Unless otherwise amended as set forth herein, this Agreement will be the complete and exclusive understanding and agreement between You and Fitivity governing Your access to and use of the Software, and will supersede any oral or written proposal, agreement, or other communication between You and Fitivity regarding Your access to and use of the Software.
This Agreement and the Software may be modified by Fitivity at any time with or without notice to You.
1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, Fitivity hereby grants to you a personal, non-transferable, non-sub-licensable and non-exclusive license solely to install, use and operate the Software on a single mobile electronic device or smart phone device owned or controlled by You in accordance with the terms of this Agreement and any applicable documentation accompanying the Software. Except as expressly set forth in the previous sentence, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Software, or any intellectual property rights therein or related thereto, and You may not use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any portion of the Software without the prior written permission of Fitivity.
2. SOFTWARE USE RESTRICTIONS. The Software (and its structure, organization, and source code), included databases [and all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content (collectively, "Content")]hardware and other technology used by or on behalf of Fitivity associated with the Software (the "Technology") are the property of Fitivity. You may not remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Software or on any copies thereof.
You shall not sublicense, distribute, hypothecate, lease, loan, or otherwise convey the Software, or any portion thereof to anyone, and under no circumstance may You use or allow the use of the Software in any manner other than as expressly set forth above. You shall not modify, adapt, alter translate or create any derivative works of the Software or incorporate, merge or use the Software in whole or in part in other products, software databases or other services. You shall not use the Software in connection with a service bureau, time sharing or fee for service arrangement with third parties. You shall not reverse engineer, disassemble or otherwise attempt to derive the source code or structure of any portion of the Software. You shall not interfere in any manner with the operation of the Software or attempt to gain unauthorized access to the Software or circumvent, or attempt to circumvent, any electronic protection measures in place to regulate or control access to the Software. If you dispose of any media embodying the Software, you will ensure that you have completely erased or otherwise destroyed any Software stored on such media. THE SOFTWARE IS NOT INTENDED FOR USE IN ANY SITUATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH OR BODILY INJURY OF ANY TYPE.
3. COPYING RESRICTIONS. You may copy the Software onto your mobile device, and you may make one (1) copy of the Software for back-up or archival purposes. You agree that (i) Your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) You shall place the same proprietary and copyright notices and legends on all such copies as included by Fitivity on any media embodying an authorized copy of the Software originally provided by Fitivity. Except as described in this paragraph, you are not permitted to copy the Software.
4. DISCLOSURE RESTRICTIONS. You acknowledge that the Software, including the source code for the Software and any information derived therefrom, constitutes a valuable trade secret of Fitivity. You shall not disclose such materials to anyone.
5. OWNERSHIP OF SOFTWARE. You agree and acknowledge that (i) the Software is licensed to You, not sold, and Fitivity transfers no ownership interest in the Software, in the intellectual property in any Software or in any Software copy, to You under this Agreement or otherwise (ii) that Fitivity reserves all rights not expressly granted to you hereunder, (iii) Fitivity owns the Software (including, but not by way of limitation, any images, algorithms, photographs, animations, video, audio, music and text incorporated in the Software), and (iv) the Software is protected by United States Copyright Law and international treatises relating to protection of copyright. The Software includes, and this Agreement will cover, any updates, upgrades or bug fixes for the Software provided to you.
6. FITIVITY CONTENT. The Software may provide You with access to certain Fitivity databases containing content of Fitivity and/or its third party content providers (collectively " Fitivity Content"). As between Fitivity and You, Fitivity will retain ownership of all right, title and interest in and to the Fitivity Content, including, without limitation, all intellectual property rights in and to the Fitivity Content. You will use and access all such Fitivity Content only as expressly set forth in the foregoing sentence and will not: (a) modify, translate, adapt, create derivative works of, publish, transmit, reproduce, or otherwise utilize the Fitivity Content in any form or format; (b) distribute, sublicense, rent, lease or loan the Fitivity Content to any third party; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Fitivity Content. The Fitivity Content may expire or require periodic updating through the Software.
The Fitivity Content is provided solely for informational purposes and reliance on the Fitivity Content is purely at your own risk. Fitivity does not warrant the accuracy or completeness of the Fitivity Content. You will be solely responsible for Your use of and reliance on the Fitivity Content and for all decisions or actions resulting from Your use of the Fitivity Content, including, but not limited to any decision regarding treatment, lack of treatment, diagnosis or other health related decisions.
The use of the Software and the Fitivity Content is not a substitute for medical advice from a physician or other licensed health care professional. The Fitivity Content is not intended to replace or overrule the judgment or diagnosis of a physician or licensed health care professional and must not be used as the basis for making any diagnosis or decision to seek or not to seek treatment. The Software is for use only under the strict supervision of a physician or other licensed health care professional.
7. Forums, Chat Spaces and Blogs.
A number of the Software features, such as the feature allowing You to share User Content, and any chat areas and blogs, offer opportunities for sharing information with others (the "Interactive Features"). Fitivity does not edit or control User Content that You and other people post to or distribute through the Interactive Features, and will not be in any way responsible or liable for User Content. Fitivity does not vet or control the Users or other individuals that use the Software or Interactive Features. Fitivity shall not be liable for any loss or damage that any person may suffer as a result of using Interactive Features. All Users use the Interactive Features at their own risk. Users should exercise caution in interacting with unknown persons that they meet using the Interactive Features in the same way that they would exercise caution in the physical world.
No User of any Interactive Feature shall:
(a) use a Interactive Feature in violation of, or in connection with any violation of, any local, state, national or international laws;
(b) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Content;
(c) except as otherwise permitted by this Agreement, harvest or otherwise collect information about others, including email addresses, without their consent;
(d) post any material more than once or "spam"; or
(e) engage in any other conduct that restricts or inhibits any other person from using or enjoying any Interactive Feature, User Content, or the Software, or which, in Fitivity’s sole judgment, exposes Fitivity or any officer, director, employee or agent of Fitivity (each a "Fitivity Affiliate") to any liability or detriment of any type.
8. Software Restrictions.
No User of this Software shall submit, upload to, distribute through or otherwise post through the Software (including any Interactive Feature) any material that:
(a) is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
(b) contains any advertising, promotional, solicitation or other commercial material;
(c) contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
(d) infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
(e) contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or
(f) contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Neither You nor any other party may, without our prior written permission, deep link to, frame, spider, harvest or scrape the Software or User Content, or otherwise access the Software or User Content for any purposes, or use any machine, electronic, web-based or similar device to read or extract the Software or User Content by machine based or automated means.
9. Fitivity Rights
Fitivity reserves the right (but is not obligated) to do any or all of the following:
(a) record User Content;
(b) Investigate an allegation that User Content or User registration information does not conform to the terms and conditions of this Agreement;
(c) remove User Content or User registration information that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
(d) monitor, edit or disclose any User Content or User registration information, and otherwise generally monitor Your use of the Software; or
(e) edit or delete any User Content or User registration information, regardless of whether such content violates any terms and conditions of this Agreement.
Fitivity shall have no liability or responsibility to Users of the Software or any other person or entity for performance or nonperformance of the aforementioned activities.
10. Ideas and User Content Submitted to Fitivity
Fitivity is pleased to hear from You and welcomes Your comments about the Software. In the event that You submit ideas or suggestions for the Software ("Software Comments"), the Software Comments will be deemed, and will remain, the sole property of Fitivity. None of the Software Comments will be subject to any obligation of confidence on the part of Fitivity, and Fitivity will not be liable for any use or disclosure of any Software Comments. Without limiting the foregoing, Fitivity will be entitled to unrestricted use and other exploitation of the Software Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Software Comments.
By submitting material to or through the Software, you grant Fitivity and our partners, agents, affiliates and service providers (collectively, "Affiliates"), the non-exclusive right to reproduce, modify and distribute such material as Fitivity sees fit for any purpose in any form, media, or technology now known or later developed. You agree that Fitivity and our Affiliates may identify you as the author of any of your postings by name, email address or screen name as Fitivity sees appropriate. You also permit any other user to access, display, and print such content for personal use. By submitting material to Fitivity, you are representing that such material does not violate or infringe any rights of any third party, including, but not limited to, copyright, trademark and other proprietary rights. If any third-party content is included in any materials that you submit, you must obtain permission from the content owner and attribute such content to the owner.
11. Warranty Disclaimers
You acknowledge that Your exercise activities involve risks, which may involve risk of bodily injury or death, and that You assume those risks. You should consult a licensed physician prior to beginning or modifying any diet or exercise program that You undertake, and You acknowledge that Fitivity has advised You of the necessity for obtaining such consultations. In addition, the Software should not be used by pregnant women or individuals under age 18. The Software is a source of information, but it does not provide medical advice. Fitivity makes no representation that Fitivity is a provider of medical services or is in compliance with federal and state laws and regulations pertaining to medical providers and other health care related matters, or that Fitivity has any obligations with respect to (a) the appropriateness of Your engaging in an exercise program; (b) the results (or lack of results) obtained by Your use of the Software; and (c) any health-related matters arising in connection with Your use of the Software. In no event shall Fitivity be liable for any death or bodily injury that You suffer, or that You cause to any third party, in connection with Your use of the Software or any exercise or other activity You undertake in connection with Your use of the Software.
12. EXPORT RESTRICTIONS. You may not export or re-export any Software except in full compliance with all United States laws and regulations, executive orders and the like, including in particular the Export Administration Regulations of the U.S. Department of Commerce. Without limitation of the foregoing, no Software may be exported or re-exported into (or to a national or resident of) any country to which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department’s list of Specialty Designated Nationals and Blocked Persons or the U.S. Commerce Department’s denied Persons List.
13. TERMINATION. If You fail to fulfill any of Your obligations under this Agreement, this Agreement will immediately terminate, with or without notice to you, and Fitivity and/or its licensors may pursue all available legal remedies available to them. Additionally, this Agreement may be terminated immediately, for any reason or for no reason, with or without notice to you.
All representations, warranties, disclaimers, and limitations of liability by You hereunder, as well as all provisions which by their nature should survive the termination of this Agreement, will survive termination or expiration of this Agreement for any reason as they apply to the rights granted to Fitivity and the restrictions placed on You.
14. U.S. GOVERNMENT USERS. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Fitivity for licenses in Software granted to the public, and (iii) the licenses forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with Federal procurement law.
15. WARRANTY BY YOU. You represent and warrant that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; and (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.
16. DISCLAIMER OF WARRANTY. FITIVITY PROVIDES THE SOFTWARE TO YOU “AS IS” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABVILITY, FITNESS FOR A PARTICUALR PURPOSE, OR NON-INFRINGEMENT. FITIVITY DOES NOT REPRESENT OR ENDORSE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, RESULT, OR OTHER CONTENT DISPLAYED, DOWNLOADED FROM, OR DISTRIBUTED THROUGH THE SOFTWARE. FITIVITY MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE COMPLETE OR UP-TO-DATE OR THAT THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED. FITIVITY MAKES NO GUARANTEE, REPRESENTATION, OR WARRANTY REGARDING THE TIMELINESS, RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF ANY PORTION OF THE SOFTWARE OR THE APPROPRIATENESS, FITNESS OR SUITABILITY OF ANY TREATMENT OR DIAGNOSIS TO WHICH THE SOFTWARE OR CONTENT, OR YOUR USE OF THE SOFTWARE OR CONTENT, MAY RELATE. YOU AGREE THAT YOUR ACCESS TO THE SOFTWARE IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY FITIVITY EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
17. LIMITATION OF LIABILITY. IN NO EVENT SHALL FITIVITY OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL) WHETHER OR NOT FITIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT, THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FITIVITY MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND FOR ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE LESSER OF (A) $10; OR (B) THE FEE YOU PAID FOR YOUR LICENSE TO THE SOFTWARE.
18. INDEMNIFICATION. To the fullest extent permitted under law, You agree to indemnify, defend, and hold harmless Fitivity and its officers, directions, employees, agents and licensors from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time be incurred by any of them in whole or in part by reason of any allegations, claims, suits, or proceedings arising from: (1) Your use of or access to the Software; or (2) any breach by You of any representation, warranty or other term or condition of this Agreement.
19. GOVERNING LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
20. DISPUTES. A party shall not seek relief from a court with respect to any dispute arising in connection with this Agreement (except for any application for urgent equitable relief) unless such dispute has first been referred to voluntary mediation, and, if such mediation is not successful, has been submitted to arbitration in Boston, Massachusetts. Each party shall choose one arbitrator and those two shall choose a third. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association and the decision of the arbitrators shall be binding and enforceable in any court of competent jurisdiction. The arbitrators shall have no power to award punitive damages nor any damages inconsistent with this Agreement or measured other than the actual losses suffered by the parties.
21. COMPLETE AGREEMENT; WAIVER; SEVERABILITY. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and Fitivity relating to the Software or the terms of its license to you and may only be modified in writing signed by you and Fitivity. In the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, the remaining terms shall survive and be enforced to the maximum extend permissible by law. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties. The parties further agree to replace any such invalid or unenforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid or unenforceable provisions.
22. CONSENT TO ELECTRONIC CONTRACTING. You agree that the execution of this Agreement may occur by you manifesting Your acceptance of it when you downloaded the Software, and that no signature on a paper copy of this Agreement is required in order to form a binding contract.