3. CHANGES TO AGREEMENT
FITMATIC.COM RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME UPON NOTICE TO CLIENT, TO BE GIVEN BY: (I) THE POSTING OF A NEW VERSION; AND/OR (II) A CHANGE NOTICE ON THE WEBSITE OR APPLICATION. IT IS CLIENT'S RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. Client will be deemed to have agreed to any such modification or amendment by Client's decision to continue using the Services following the date in which the modified or amended Agreement is posted. In no case, however, shall such a decision by the Client be deemed to release the Client from any extant responsibilities or obligations arising herefrom.
BY USING THE SERVICES, CLIENT REPRESENTS AND WARRANTS THAT THE CLIENT IS AT LEAST 18 YEARS OLD (FOR INDIVIDUALS IN THEIR PERSONAL CAPAICITY) OR ARE AUTHORIZED TO ENTER INTO LEGALLY BINDING AGREEMENTS ON BEHALF OF A CURRENTLY ACTIVE AND LEGALLY CONSTITUTED CORPORATE ENTITY, AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. This Agreement is void where prohibited.
5. COMMERCIAL USE
Any Client using the Services or any such Applications on behalf of, or containing data for any real person other that the Client in his or her individual capacity shall be deemed a Commercial User and shall be entitled to use the Services and any such Applications only in exchange for the payment of fees as published or otherwise communicated to the Client by Fitmatic.com. By using the Services or any Applications on behalf of, or containing data for any real person other that the Client in his or her individual capacity, the Client hereby agrees to pay all such fees due for and incurred by Client in Client's usage of the Services or any such Applications.
When the Client establishes Commercial Use of the Services or Applications, the Client must designate and provide information about Client's preferred payment method ("Payment Method"). Client may switch to a different Payment Method or update Client's information by visiting the "Settings" page within the Websites and Applications. THE CLIENT SHALL BE RESPONSIBLE FOR MAINTAINING THE CURRENCY AND ACCURACY OF SUCH INFORMATION, AND HEREBY CONSENTS TO AND AUTHORIZES BILLING THROUGH ANY ACCEPTED THIRD PARTY PAYER (INCLUDING BUT NOT LIMITED TO CREDIT CARDS, DEMAND DRAFTS, CRYPTOCURRENCY PAYMENT SERVICES, ETC.) AND HEREBY WAIVES ANY RIGHT DISPUTE, REQUEST CHARGEBACK, OR OTHERWISE SOLICIT SUCH THIRD PARTIES TO DISRUPT OR DISHONOR SUCH CHARGES MADE BY FITMATIC.COM. THE CLIENT HEREBY AGREES TO ASSUME RESPONSIBILITY FOR AND REIMBURSE FITMATIC.COM FOR ALL REASONABLE COLLECTION EXPENSES FOR THE CLIENT'S BREACH OF THIS OR ANY OTHER SECTION OF THESE TERMS.
The Client may elect to make payment for the Commercial User fees on a monthly or annual subscription basis. All fees due for the Commercial Use Services and Applications are payable in advance. Fees due for the Commercial User Services and Applications will be billed automatically to the Payment Method at the start of the monthly or annual subscription period, as applicable, and will auto-renew until Client elects to cancel Client's access to such Commercial Use Services or Applications in writing to the address established in the Notifications section of these terms or by using the utilities provided within the website, Services, or Applications. IN ALL CASES ALL FEES ARE FULLY NONREFUNDABLE ONCE BILLED BY FITMATIC.COM.
Fitmatic.com reserves the right to immediately suspend or terminate the Client's access to all records and functionalities provided pursuant to the Services or any Applications governed hereunder for any late or nonpayment of associated charges.
Fitmatic.com reserves the right to increase fees charged for the Commercial Use Services or Applications or to institute new fees at any time upon reasonable notice posted in advance on the Websites and/or Applications. The Client hereby consents to such changes in accordance with Section 3 of these Terms.
Subject to Client's compliance with the terms and conditions of this Agreement, Fitmatic.com grants the Client a non-exclusive, non-sublicensable, revocable, non-transferable license to use the Services through the Website or by downloading and installing such Applications and Fitmatic.com may include in the Services. THE SERVICES ARE FOR CLIENT'S SOLE PERSONAL OR COMMERCIAL USE. The Services, including the Website and any Applications, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose except as contemplated herein without the express written consent of Fitmatic.com. Except as expressly set forth herein, this Agreement grants the Client no rights in or to the intellectual property of Fitmatic.com or any other party. The license granted in this section is conditioned on the Client's compliance with the terms and conditions of this Agreement. In the event that Client breaches any provision of this Agreement, the Client's rights, but not obligations or responsibilities, under this section will immediately terminate.
When accessing the Services or such Applications as Fitmatic.com may include with the Services through third parties approved by Fitmatic.com, the Client acknowledges and agrees that: (a) this Agreement is concluded between Fitmatic.com and the Client, and not with such third parties, and that Fitmatic.com is solely responsible for the Services and any such Applications; (b) the third party has no obligation to furnish any maintenance and support services with respect to the Services or any such Applications; (c) HEREBY INDEMNIFIES, HOLDS HARMLESS, AND IRREVOCABLY WAIVES ALL CLAIMS AND CAUSES OF ACTION AGAINST SUCH THIRD PARTIES FOR ANY REASON AND UNDER ANY THEORY OF LAW WHATSOEVER BY ANY PARTY ARISING FROM, IN WHOLE OR IN PART, FROM THE CLIENT'S USE OF THE SERVICES OR ANY SUCH APPLICATIONS RENDERED PURSUANT TO THESE TERMS UNLESS AUTHORIZED IN WRITING TO THE CONTRARY BY FITMATIC.COM.
7. THE SERVICE DOES NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE; NO DOCTOR-PATIENT RELATIONSHIP
Fitmatic.com provides the Services for informational convenience purposes only. Fitmatic.com is not a medical professional, and Fitmatic.com does not provide medical services, render medical advice, nor represent itself to be a qualified medical records retention or transmittal service. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION, NOR DOES FITMATIC.COM REPESENT OR WARRANT THAT THE SERVICES OR ANY SUCH APPLICATIONS PROVIDED HEREUNDER ARE SUITABLE FOR ANY REGULATED PURPOSE. The Services are not a substitute for the advice of a medical professional, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition, and the Client is hereby enjoined from presenting any records stored or retrieved pursuant to the Services or any such Applications as reliable data to any healthcare provider. If the Client or Sub-Client requires medical advice or services, the Client or Sub-Client should consult a medical professional. CLIENT'S USE OF THE SERVICES DOES NOT CREATE A HEALTHCARE PROVIDER-PATIENT RELATIONSHIP BETWEEN THE CLIENT OR SUB-CLIENTS AND FITMATIC.COM.
8. RISK ASSUMPTION
CLIENT KNOWINGLY AND FREELY ASSUMES ALL RISK WHEN USING THE WEBSITE, ANY APPLICATIONS AND SERVICES ON BEHALF OF CLIENT'S SELF AND SUBCLIENTS. THE CLIENT HEREBY VOLUNTARILY AGREES TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY FITMATIC.COM AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO CLIENT OR TO THIRD PARTIES, WHICH MAY RESULT FROM CLIENT'S USE OF THE SERVICES AND ANY APPLICATIONS.
The Client will also be asked to provide a user name and password in connection with the Client's use of certain of the Services. The Client is entirely responsible for maintaining the confidentiality and security of Client's password. The Client may not use the account, user name, or password of any other Client at any time. The Client agrees to notify Fitmatic.com immediately if the Client becomes aware of any unauthorized use of the Client's account, user name, or password, and to assist in the investigations of any such breaches as directed by Fitmatic.com. Fitmatic.com shall not be liable for any loss that the Client incurs as a result of unauthorized use of the Client's password, either with or without the Client's knowledge. Client may be held liable for any losses incurred by Fitmatic.com, its affiliates, officers, directors, employees, consultants, agents, other clients and representatives due to unauthorized use of the Client's account or password.
The Client represents and warrants that it shall maintain all devices from which any and devices from which at accesses the Services, Website, and any Applications in a secure manner and free from all computer viruses, worms, trojan horses, or other malicious or otherwise unlawful code. THE CLIENT HEREBY AGREES TO ASSUME ALL RESPONSIBILITY FOR AND INDEMNIFY FITMATIC.COM FROM ALL EXPENSES AND CLAIMS ARISING FROM DAMAGES, DIRECT AND CONSEQUENTIAL, RESULTING FROM THE CLIENTS FAILURE TO COMPLY WITH THIS SECTION OF THE TERMS.
10. INTER-CLIENT DISPUTES
Fitmatic.com reserves the right, but disclaims any perceived, implied or actual duty, to monitor disputes between the Client and any other clients of Fitmatic.com. Client agrees to hold Fitmatic.com harmless in connection with any dispute or claim Client makes against any other Fitmatic.com client, and in no case shall Fitmatic.com be deemed to have any fiduciary or other obligation to intervene mediate or take any action whatsoever on behalf of or for the protection of any Client in or arising from such disputes. THE CLIENT HEREBY WAIVES IN PERPETUITY THE RIGHT TO, UNDER ANY CAUSE OF ACTION OR THOERY OF LAW, SEEK OR ENFORCE ANY JUDGEMENT OR ORDER FOR SPECIFIC ENFORCEMENT AGAINST OR REQUIRING ACTION BY FITMATIC.COM ARISING FROM SUCH DISPUTES. Without limiting the generality of the foregoing, Fitmatic.com reserves the right to take any action it believes, in its sole judgement and discretion, justified and appropriate in response to any such disputes.
11. CONSENT TO RECEIVE EMAIL FROM FITMATIC.COM
In providing the Services, the Client may receive periodic email communications regarding the Services, Applications, new product offers and information regarding the Services, which are part of the Services and which the Client cannot opt out of receiving. Client may also receive periodic promotions and other offers or materials Fitmatic.com believes might be of interest to Client. The Client can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each newsletter; or (b) changing the email preferences in Client's account.
12. THIRD-PARTY WEBSITES AND ADVERTISING
The Services or Applications may include links to websites of third parties ("Third-Party Websites"), some of whom may have established relationships with Fitmatic.com and some of whom may not. Fitmatic.com does not have control over the content and performance of Third-Party Websites. FITMATIC.COM HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, FITMATIC.COM DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. FITMATIC.COM DISCLAIMS, AND CLIENT AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO CLIENT OR TO THIRD PARTIES, RESULTING FROM CLIENT'S USE OF THIRD-PARTY WEBSITES.
13. THIRD-PARTY SERVICES
14. USER CONTENT
"User Content" is any content, materials or information (e.g., any text, information, photos, images, video, data in any format and other content and material) that the Client uploads, posts, or transmits to Fitmatic.com or any parent, subsidiary, or affiliated entity, by means of or pursuant to the Services or any Applications, whether in connection with Client's use of Website, Application, or through the use of any Third Party Websites or Third Party Services or otherwise. The Client hereby grants Fitmatic.com and its officers, directors, employees, agents, affiliates, representatives, service providers, partners, sub-licensees, successors, and assigns (collectively, the "Fitmatic.com Parties") full, unencumbered right title and ownership of all such User Content, In the event that by operation of law or other cause, such transfer of title and ownership shall be prohibited or otherwise deemed unenforceable, the Client hereby grants to the Fitmatic.com Parties a perpetual, fully paid-up, worldwide, sublicensable, irrevocable, assignable license to copy, distribute, publish, transmit, publicly display or perform, edit, modify, translate, reformat and otherwise use User Content in connection with the operation of the Services, any other similar services or related business, and any other lawful purpose, in any medium now existing or later devised, including without limitation in advertising and publicity. THE CLIENT AGREES TO WAIVE, AND HEREBY WAIVES, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE FITMATIC.COM PARTIES OF THE RIGHTS GRANTED UNDER THIS SECTION. CLIENT WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.
The Client hereby represents and warrants that the Client owns all rights, title and interest in and to User Content or is otherwise authorized to grant the rights provided the Fitmatic.com Parties under this section. Client represents and warrants that, when using the Website, Applications and Services, the Client will obey the law and respect the intellectual property and privacy rights of others. Client's use of the Website, Services and any Applications is at all times governed by and subject to laws regarding copyright ownership, use of intellectual property, and medical privacy regulations generally. The Client agrees not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party's copyrights, trademarks, other intellectual property or proprietary rights, and medical privacy rights. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY CLIENT'S USE OF THE WEBSITE, APPLICATIONS AND SERVICES. CLIENT'S BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
THE CLIENT IS SPECIFICALLY NOTIFIED THAT PERSONALLY IDENTIFIABLE INFORMATION RELATING TO ANY PERSON'S PHYSICAL STATUS (INLCUDING BUT NOT LIMITED TO WEIGHT, BMI, DISABILITIES, OR OTHER PHYSCIAL CAPABILITIES) MAY BE SUBJECT TO THE REQUIREMENTS OF HIPAA AND 45 CFR PART 160 AND SUBPARTS A AND E OF PART 164 AND ANALOGOUS STATE AND LOCAL LAWS. ACCORDINGLY, THE CLIENT HEREBY REPRESENTS AND WARRANTS THAT IT HAS OBTAINED VALID CONSENT (IN THE FORM AND CONTENT ESTABLISHED BY SUCH REGULATION) FROM ALL PARTIES (INCLUDING HIMSELF OR HERSELF) WHOSE APPLICABLE DATA MAY BE PROVIDED BY THE CLIENT AS USER CONTENT, OR THAT THE CLIENT HAS REPLACED SUCH INFORMATION THAT COULD RENDER SUCH DATA PERSONABLY IDENTIFIABLE WITH ENCODED OR GENERICALLY SUBSTITUTED SURROGATE DATA ADEQUATE TO COMPLY WITH APPLICABLE STATE AND FEDERAL REGULATIONS.
15. OBJECTIONABLE CONTENT
The Client represents and warrants that Client shall not use the Services, Website, or any Application to upload, post, transmit, re-transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit personal information; (d) incite, encourage or threaten physical harm against another; (e) promote or glorify racial intolerance, use hate and/or racist terms, or signify hate towards any person or group of people; (f) glamorize the use of hard core illegal substances and drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this Agreement or any other Fitmatic.com agreement, guidelines or policy; or (i) is generally offensive or in bad taste, as determined by Fitmatic.com (collectively, "Objectionable Content"). FITMATIC.COM DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENTS OF THE SERVICES AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other remedies, Fitmatic.com reserves the right to terminate the Client's use of the Services or the Client's uploading, posting, transmission, display, performance or distribution of Objectionable Content. Fitmatic.com, in its sole discretion, may delete any Objectionable Content from its servers. Fitmatic.com intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
16. PROHIBITED USES
Fitmatic.com imposes certain restrictions on Client's use of the Services. Client represent and warrant that Client will not: (a) provide false, misleading or inaccurate information to Fitmatic.com or any other member; (b) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (c) create more than one unique account; (d) harvest or otherwise collect information about Fitmatic.com users, including email addresses and phone numbers; (e) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (f) access content or data not intended for Client, or log onto a server or account that Client are not authorized to access; (g) attempt to probe, scan, or test the vulnerability of the Services, the Website, any Applications, or any associated system or network, or breach security or authentication measures without proper authorization; (h) interfere or attempt to interfere with the use of the Website, the Applications or the Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing"; (i) use the Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (j) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Services; (k) post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise; or (l) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Fitmatic.com Parties in providing the Website or Applications. Any violation of this section will result in immediate termination of the Client Services and may subject the Client to civil and/or criminal liability.
17. INTELLECTUAL PROPERTY
The Client acknowledges and agrees that the Website, Services, Functionality, Databases, Applications, and all associated technology and all intellectual property rights associated therewith are, and shall remain, the property of Fitmatic.com. Furthermore, the Client acknowledges and agrees that the source and object code of the Website, Databases, Services, and Applications and the format, directories, queries, algorithms, structure and organization of the Website, Services, Databases, and Applications are the intellectual property and proprietary and confidential information of Fitmatic.com and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, the Client is not granted any intellectual property rights in or to the intellectual property by implication, estoppel or other legal theory, and all rights in and to the intellectual property not expressly granted in this Agreement are hereby reserved and retained by Fitmatic.com.
The Website, Databases, Services, and Applications may utilize or include third party software that is subject to third party license terms ("Third Party Software"). Client acknowledges and agrees that the Client's right to use such Third Party Software as part of the Services and any Applications is subject to and governed by the terms and conditions of the third party license applicable to such Third Party Software. In the event of a conflict between the terms of this Agreement and the terms of such third party licenses, the terms of the third party licenses shall control with regard to the Client's use of the relevant Third Party Software.
Fitmatic, Fitmatic.com, and any associated logos (collectively, the "Fitmatic.com Marks") are trademarks or registered trademarks of Fitmatic.com, Inc.. Other trademarks, service marks, graphics, logos and domain names appearing on the Website, Applications, or Services may be the trademarks of third-parties. Neither the Client's use of the Services, Website, or Applications, nor this Agreement, grant the Client any right, title or interest in or to, or any license to reproduce or otherwise use, the Fitmatic.com Marks or any third-party trademarks, service marks, graphics, logos or domain names. The Client agrees that any goodwill in the Fitmatic.com Marks generated as a result of the Client's use of the Website, Applications or Services will inure to the benefit of Fitmatic.com, Inc., and the Client agrees to assign, and hereby does assign, all such goodwill to Fitmatic.com, Inc.. The Client shall not at any time, nor shall the Client assist others to, challenge Fitmatic.com, Inc.'s right, title, or interest in or to, or the validity of, the Fitmatic.com Marks.
3. Copyrighted Materials; Copyright Notice
All content and other materials available through the Website and Services, including without limitation the Fitmatic.com logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Fitmatic.com, Inc. or are the property of Fitmatic.com's licensors and suppliers. Except as explicitly provided, neither Client's use of the Services, Website, or any Applications nor this Agreement grant Client any right, title or interest in or to any such materials.
4. Digital Millennium Copyright Act Policy
If Client has evidence, knows, or has a good faith belief that the Client's rights or the rights of a third party have been violated and the Client wants Fitmatic.com to delete, edit, or disable the material in question, the Client must provide Fitmatic.com with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Fitmatic.com to locate the material; (d) information reasonably sufficient to permit Fitmatic.com to contact the Client, such as an address, telephone number, and if available, an electronic mail address at which the Client may be contacted; (e) a statement that the Client has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the Client is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, the Client must provide it to Fitmatic.com's designated agent at:
Attn: Copyright Agent
2950 NE 188th St, # 336
Miami, FL 33180
18. DISCLAIMERS; LIMITATION OF LIABILITY
1. NO WARRANTIES.
FITMATIC.COM, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE, APPLICATIONS AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, FITMATIC.COM, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER FITMATIC.COM NOR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE, APPLICATIONS OR THE SERVICES WILL MEET CLIENT'S REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE, APPLICATIONS OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
2. CLIENT'S RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
THE CLIENT AGREES THAT THE CLIENT'S USE OF THE WEBSITE, APPLICATIONS AND SERVICES IS AT THE CLIENT'S SOLE RISK. THE CLIENT WILL NOT HOLD FITMATIC.COM OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM CLIENT'S ACCESS TO OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF THE CLIENT'S COMPUTERS OR DATA. THE WEBSITE, APPLICATIONS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. IMPORTANTLY, THE CLIENT HEREBY ACKNOWLEDGES THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO THE CLIENT'S ACCOUNT. THE CLIENT AGREES AND UNDERSTANDS THAT IT IS CLIENT'S RESPONSIBILITY TO BACKUP THE CLIENT'S DATA IN A SUITABLE MANNER.
3. LIMITATION OF LIABILITY
THE LIABILITY OF FITMATIC.COM AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FITMATIC.COM OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO FITMATIC.COM OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH CLIENT'S USE OF THE WEBSITE, APPLICATIONS OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF FITMATIC.COM AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO CLIENT UNDER ALL CIRCUMSTANCES WILL BE $50.00. THE CLIENT AGREES THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN FITMATIC.COM AND CLIENT. THE WEBSITE, APPLICATIONS AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN THIS AGREEMENT, ANY OTHER AGREEMENT BETWEEN THE CLIENT AND FITMATIC.COM OR BETWEEN CLIENT AND ANY OF FITMATIC.COM'S THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO THE CLIENT. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. FITMATIC.COM'S THIRD-PARTY SERVICE PROVIDERS LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CLIENT THROUGH THE SERVICES OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
19. CLIENT'S REPRESENTATIONS AND WARRANTIES
The Client represents and warrants that Client's use of the Website, Applications and Services will be in accordance with this Agreement and any other Fitmatic.com policies and guidelines, and with any applicable laws or regulations.
20. INDEMNITY BY CLIENT
Without limiting any indemnification provision of this Agreement, the Client agrees to defend, indemnify and hold harmless Fitmatic.com and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Third-Party Service Providers (collectively, the "Indemnified Parties") from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, "Claims"), including but not limited to legal costs and fees, arising out of or relating to: (i) the Client's breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Client's access to or use of the Website, Applications or Services; (iii) the Client's provision to Fitmatic.com or any of the Indemnified Parties of information or other data; (iv) the Client's violation or alleged violation of any foreign or domestic, federal, state or local law or regulation; or (v) Client's violation or alleged violation of any third party's copyrights, trademarks, medical privacy rights, or other intellectual property or proprietary rights.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by the Client of any Claim as to which the Client are required to defend, indemnify or hold harmless the Indemnified Parties. The Client may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
21. GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in Miami, Florida and shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of law principles. ANY CAUSE OF ACTION BY THE CLIENT ARISING OUT OF OR RELATING TO THE SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
1. Requirement of Arbitration.
The Client agrees that any dispute, of any nature whatsoever, between the Client and Fitmatic.com arising out of or relating to this Agreement, including the arbitability of such dispute, shall be decided by neutral, binding arbitration before a representative of JAMS in Miami, Florida (unless Client and Fitmatic.com mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of Florida and JAMS' Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS' fee and reasonable attorney's fees) to the prevailing party.
2. Remedies in Aid of Arbitration; Equitable Relief.
This agreement to arbitrate will not preclude Fitmatic.com from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude Fitmatic.com from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING "EQUITABLE RELIEF" WILL BE THE FEDERAL AND STATE COURTS LOCATED IN MIAMI, FLORIDA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
1. Termination; Survival
Either party may terminate this Agreement and its rights hereunder at any time, for any or no reason at all, by providing to the other party notice of its intention to do so in accordance with this Agreement. This Agreement may be terminated in the event that the Client breaches any of this Agreement's representations, warranties or covenants. Such termination shall be at the sole discretion of Fitmatic.com, and shall not require any action by Fitmatic.com beyond notification of the Client. Upon termination, all rights, licenses granted to the Client hereunder and obligations of Fitmatic.com created by this Agreement will terminate. All indemnities, intellectual property, copyright, and previously incurred financial obligations of the Client, as well as procedural, administrative, and fiduciary terms shall survive such termination.
2. Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to the Client under this Agreement, including all rights to use the Website, Applications and Services. Subsequent to termination, Fitmatic.com reserves the right to exercise whatever means it deems necessary to prevent Client's unauthorized use of the Website, Applications and Services, including without limitation technological barriers such as IP blocking and direct contact with the Client's Internet Service Provider.
3. Legal Action
If Fitmatic.com, in Fitmatic.com's discretion, takes legal action against the Client in connection with any actual or suspected breach of this Agreement, Fitmatic.com will be entitled to recover from the Client as part of such legal action, and the Client agrees to pay, Fitmatic.com's reasonable costs and attorneys' fees incurred as a result of such legal action. The Fitmatic.com Parties will have no legal obligation or other liability to the Client or to any third party arising out of or relating to any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. Fitmatic.com shall give any notice by email sent to the most recent email address, if any, provided by the Client to Fitmatic.com. The Client agrees that any notice received from Fitmatic.com electronically satisfies any legal requirement that such notice be in writing. THE CLIENT BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT THE CLIENT'S EMAIL ADDRESS ON FILE WITH FITMATIC.COM IS ACCURATE AND CURRENT, AND NOTICE TO CLIENT SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY FITMATIC.COM OF AN EMAIL TO THAT ADDRESS. Client shall give any notice to Fitmatic.com by means of: U.S. mail, postage prepaid, to Fitmatic.com LLC., 2950 NE 188TH St, # 336, Miami, FL 33180. Notice to Fitmatic.com shall be effective upon receipt of notice by Fitmatic.com.
This Agreement constitutes the entire agreement between Fitmatic.com and the Client concerning the Client's use of the Website, Applications, and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of Fitmatic.com or by the unilateral amendment of this Agreement by Fitmatic.com and by the posting by Fitmatic.com of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Fitmatic.com may assign or transfer this Agreement at any time, with or without notice to the Client. This Agreement and all of the Client's rights and obligations hereunder will not be assignable or transferable by the Client without the prior written consent of Fitmatic.com. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The Client and Fitmatic.com are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. The Client acknowledges and agrees that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by the Client would cause irreparable injury to Fitmatic.com and Fitmatic.com's licensors and suppliers, and would therefore entitle Fitmatic.com or Fitmatic.com's licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.