Last Modified: September 28, 2017

 

PLEASE READ THIS AGREEMENT CAREFULLY.

 

The following terms and conditions (the “Terms of Service”) form an integral part of the FitSafe Service Agreement (“Agreement”) between FitSafe, LLC (“FitSafe”) and the customer identified in the Commercial Terms (“Customer”). Capitalized terms shall have the meanings set forth in Section 14 below or in the Section in which they first appear in these Terms of Service. Capitalized terms used but not defined herein shall have the meanings set forth in the Commercial Terms.

 

  1. Services and Software. 

1.1           Access and Use. Subject to and conditioned upon Customer’s compliance with the terms and conditions of the Agreement, (a) Customer may access and use the Service during the Subscription Period solely for purposes of Customer’s internal business operations, and (b) if Customer downloads any Software, FitSafe hereby grants Customer a limited license to install, access, and use the Software, in object code form only, in connection with Customer’s use of the Services. Customer may allow its Users to access and use the Service and install, access, and use the Software for the purposes set forth above, provided that Customer shall ensure its Users’ compliance with the terms and conditions of the Agreement that apply to Customer, and Customer shall be responsible and liable for any User’s non-compliance with the terms and conditions of the Agreement that apply to Customer. The foregoing authorizations granted to Customer are non-exclusive and non-transferable.

1.2           Updates. FitSafe may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. Customer acknowledges and agrees that FitSafe has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If Customer downloads a FitSafe-branded mobile application (“Application”) on a mobile device, when such mobile device is connected to the Internet, either (a) the Application will automatically download and install all available Updates, or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer agrees to promptly download and install all Updates and acknowledges and agrees that the Applications or portions thereof may not properly operate should Customer fail to do so.

1.3           Limitations and Restrictions.  Customer shall not, and shall not permit any User or other person or entity to, access or use the Service or FitSafe Materials except as expressly permitted in the Agreement. Without limiting the foregoing, Customer shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or FitSafe Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer any Service or FitSafe Materials to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the FitSafe Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Service or FitSafe Materials or access or use the Service or FitSafe Materials other than through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or FitSafe Systems any Customer Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, FitSafe Materials, or FitSafe’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or FitSafe Materials; (i) access or use the Service or FitSafe Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (j) access or use the Service or FitSafe Materials for purposes of competitive analysis of the Service or FitSafe Materials, the development, provision, or use of a competing service or product, or any other purpose that is to FitSafe’s detriment or commercial disadvantage; or (k) otherwise access or use the Service or FitSafe Materials beyond the scope of the rights granted under Section 1.1 (Access and Use) above.

1.3           Schedule of Fees, Subscription Period & Reneweal.  The Software is a subscription either (A) $6.99 per month, paid monthly, for a period of 12 contiguous months; or (B) a one-time payment of $83.99 for a 12-month subscription. In either instance A or B these twelve (12) months of subscription shall be called the Subscription Period. Subscription may not, under any circumstance, be cancelled during initial Subscription Period or any subsequent Subscription Period. Subscription shall automatically and continuously auto-renew for additional twelve-month Subscription Periods after the initial Subscription Period, and subsequent Subscription Period(s), unless notice to not renew is received at least thirty (30) days prior to renewal via USPS Certified Return Receipt Requested Mail at:

 

FitSafe LLC

212 E 57th Street

New York, NY 10022

 

  1. Certain Customer Obligations.  

2.1           Customer Control and Responsibility. Customer has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and Customer has and shall retain sole responsibility for: (a) all Customer Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s Access Credentials; and (e) all access to and use of the Service and FitSafe Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. FitSafe is not liable for any loss or damage arising from Customer’s failure to protect its Access Credentials.
2.2           Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), Customer shall, and shall cause its Users to, immediately (a) notify FitSafe of any such actual or threatened activity, and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.

 

  1. Data.  

3.1           Customer Data.  Customer represents, warrants, and covenants to FitSafe that Customer owns or otherwise has (and, prior to FitSafe’s receipt of Customer Data, will have) the necessary rights and consents in and relating to Customer Data, so that FitSafe’s receipt and Processing of Customer Data in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any User or other person or entity, or any applicable law.
3.2           Prohibited Data. Customer acknowledges that the Service is not designed with security and access management for Processing the following categories of information: (a) any personal information that imposes specific data security obligations on FitSafe for the Processing of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (b) data that is classified and/or used on the United States Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any User or other person or entity to, provide any Prohibited Data to, or Process any Prohibited Data through, the Service or FitSafe Systems. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
3.3           Data Backup.  The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. FITSAFE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
3.4           Privacy Policy.  All Customer Data and any other information FitSafe collects when Customer accesses and/or uses the Service is subject to FitSafe’s Privacy Policy available at www.FitSafe.net/privacy (“Privacy Policy”), which is hereby incorporated herein by reference. Customer consents to all actions taken by FitSafe with respect to such information in compliance with the Privacy Policy.

  1. Content.  

4.1           Services and FitSafe Materials.  As between Customer and FitSafe, FitSafe is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services and FitSafe Materials, including all Intellectual Property Rights therein and thereto. Other than the limited rights and licenses granted to Customer pursuant to Section 1.1 (Access and Use) above, nothing in the Agreement grants Customer any right, title, or interest in or to the Services or FitSafe Materials, including any Intellectual Property Rights therein or relating thereto, whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to FitSafe.
4.2           Work Product.  Without limiting Section 4.1 (Services and FitSafe Materials) above, FitSafe is and shall remain the sole and exclusive owner of all right, title, and interest in and to all developments, inventions, technology, materials, and other work product made or conceived or actually or constructively reduced to practice by or on behalf of FitSafe in the course of performing any Professional Services (collectively, the “Work Product”), including all Intellectual Property Rights therein and thereto. For clarity, Work Product does not include Customer Data. In the event Customer is a deemed owner of any right, title, or interest in or to any part of the Work Product, Customer agrees to assign, and  hereby irrevocably assigns, to FitSafe all of its right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein and thereto. Customer agrees to give FitSafe, and any person designated by FitSafe, reasonable assistance, at FitSafe’s expense, in perfecting and/or evidencing FitSafe’s rights in and to the Work Product, including by executing and delivering all documents reasonably requested by FitSafe for such purposes. FitSafe hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Work Product provided by FitSafe to Customer in connection with the Professional Services solely for Customer’s internal business operations and in connection with the Service and Equipment, subject to all applicable terms and conditions of the Agreement.
4.3           Customer Data.  As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights therein and thereto, subject to the license granted herein to FitSafe. Customer hereby grants to FitSafe a non-exclusive, worldwide, transferable, sub-licensable (to its subcontractors), irrevocable, royalty-free, fully paid-up license to Process the Customer Data in order to provide the Services to Customer and its Users.
4.4           Service Analyses.  FitSafe may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the FitSafe Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ((a) and (b) collectively, “Service Analyses”). FitSafe may make Service Analyses publicly available and use the Service Analyses for its business purposes, however Service Analyses shall not incorporate Customer Data in a form that could serve to identify Customer or any individual. Service Analyses do not constitute Customer Data, and FitSafe shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.

 

  1. Other Websites and Ancillary Services. 

5.1           Links to Other Websites. Portions of the Service may contain links to websites operated by third parties. Such links are provided for Customer’s convenience only, and if Customer accesses any such linked websites Customer does so at its own risk. FitSafe is not responsible for the content of any such websites, or the products and services sold on them, nor is FitSafe responsible or liable for any loss or damage that may arise from Customer’s use of such websites. When Customer visits a linked website, Customer should read the terms and conditions and privacy policy that govern that particular website. Links to other websites do not imply FitSafe’s endorsement of any content, advertising, products, services, or other materials on or available through such websites.
5.2           Ancillary Services. As part of the functionality of certain parts of the Service, Customer may have access to certain third party online financial and other services (“Ancillary Services”). The Service is designed to allow Customer to access accounts Customer may have on the Ancillary Services to allow the Service to access and aggregate information from such account(s). Customer acknowledges and agrees that (a) some third parties may not allow the Service to access certain Ancillary Services, and (b) third parties may make changes to their websites or other Ancillary Services, with or without notice to FitSafe, that may affect overall performance of the Service and prevent or delay aggregation of information from Customer’s account(s) on such Ancillary Services. Customer acknowledges and agrees that FitSafe has no control over any of the Ancillary Services, and will have no liability whatsoever for the Ancillary Services or any actions or inactions on the part of such third parties resulting in Customer’s inability to use the Service to access its accounts, obtain data, or otherwise access or use the Ancillary Services.
5.3           Collection of Ancillary Account Data. Customer acknowledges that in accessing the Ancillary Services through the Service, Customer’s username(s), password(s), and any other security or access information for Customer’s account(s) on such Ancillary Services, and data and other information in such account(s) (collectively, “Ancillary Account Data”), may be collected and stored through the Service. Customer authorizes FitSafe, in conjunction with FitSafe’s provision of the Services, to: (a) access Customer’s account(s) on Ancillary Services and collect and Process Customer’s Ancillary Account Data; (c) access the applicable third party websites and Ancillary Services using Customer’s Ancillary Account Data; and (c) take such other actions as are reasonably necessary to perform the actions described in (a) and (b) above. Customer hereby represents and warrants to FitSafe that Customer is the legal owner of Customer’s Ancillary Account Data and that Customer has the authority to appoint, and hereby expressly does appoint, FitSafe as Customer’s agent with limited power of attorney to access and retrieve Customer’s Ancillary Account Data on Customer’s behalf. Customer further acknowledges and agrees that all Ancillary Account Data constitutes Customer Data hereunder and is subject to the applicable terms and conditions of the Agreement.

  1. Changes and Suspension. 

6.1           Changes to the Services. FitSafe reserves the right to make changes to the Services and FitSafe Materials, or any portion thereof, for any reason. Customer agrees that FitSafe will not be liable to Customer or third party for any such change.
6.2           Suspension of Access. FitSafe may suspend Customer’s and/or any of its Users’ access to or use of all or any part of the Services or FitSafe Materials, without incurring any resulting obligation or liability, if: (a) FitSafe receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires FitSafe to do so; (b) FitSafe believes, in its good faith and reasonable discretion, that Customer or any of its Users have violated the provisions of Section 1.3 (Limitations and Restrictions) or Sections 3.1 (Customer Data) or 3.2 (Prohibited Data); or (c) Customer fails to pay any amount when due under the Agreement. Any such suspension shall not excuse Customer from its obligation to make the payment(s) contemplated under the Agreement to FitSafe. If FitSafe suspends the Service, FitSafe shall promptly restore Customer’s (or the applicable User’s) access to and use of the Service after the event giving rise to the suspension has been resolved to FitSafe’s satisfaction.

 

  1. Indemnification. 

7.1           Indemnification of FitSafe. Customer will indemnify, defend, and hold harmless FitSafe, its affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys’ fees) arising out of or in connection with any third party claim, action, suit, or proceeding arising out of or related to: (a) Customer Data, including any Processing of Customer Data by or on behalf of FitSafe in accordance with this Agreement; (b) FitSafe’s compliance with any specifications or directions provided by or on behalf of Customer; or (c) any breach or violation of this Agreement or applicable law by Customer, any User, or any other person accessing and/or using any of the Services or FitSafe Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent.
7.2           Indemnification Procedure. Upon receiving notice of a claim for which FitSafe is entitled to indemnification by Customer, FitSafe shall provide Customer with written notification and the opportunity to assume sole control over the defense or settlement of such claim and reasonable assistance to settle and/or defend such claim at Customer’s sole expense; provided, however, that: (a) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by FitSafe will require FitSafe’s prior written consent; (b) the failure to provide timely notice, control, or assistance shall not relieve Customer of its indemnification obligations hereunder; and (c) FitSafe may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at FitSafe’s own expense, unless Customer fails or refuses to secure legal counsel to defend any claim in a timely manner, in which case Customer shall pay all expenses related to FitSafe’s use of such counsel.

 

  1. Term and Termination.   

8.1           Term. The Agreement commences on the Effective Date and will remain in effect for the Subscription Period, unless terminated earlier in accordance with its express provisions.
8.2           Termination by FitSafe. FitSafe may terminate the Agreement, effective immediately upon written notice to Customer, if (a) Customer fails to pay any amount when due and such failure continues more than 15 days after delivery of written notice thereof, or (b) Customer breaches any of Customer’s obligations under Section 1.3 (Limitations and Restrictions).

8.3           Effect of Termination. Upon any expiration or termination of the Agreement, all rights and licenses granted to Customer under the Agreement shall immediately terminate, and FitSafe may disable Customer’s and its User’s access to the Service. In addition, Customer shall, and shall instruct its Users to, immediately cease using the Service and FitSafe Materials and destroy all copies of the FitSafe Materials in Customer’s possession or control. The expiration or termination of the Agreement shall not (a) prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the effective date of the termination or expiration, or (b) relieve Customer of its obligation to pay any charges that have accrued or have become payable to FitSafe under the Agreement.
8.4           Survival. Any right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, shall survive any expiration or termination of the Agreement, including the provisions of Sections 1.3 (Limitations and Restrictions), 2.1 (Customer Control and Responsibility), 3 (Data), 4 (Ownership), 7 (Indemnification), 8.4 (Effect of Termination), 8.5 (Survival), 9 (Disclaimers), 10 (Limitations of Liability), 13 (General), and 14 (Definitions).

 

  1. Disclaimers.   

9.1           Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, EQUIPMENT, AND FITSAFE MATERIALS IS AT CUSTOMER’S SOLE RISK. ALL SERVICES, EQUIPMENT, AND FITSAFE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FITSAFE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, FITSAFE DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, EQUIPMENT, OR FITSAFE MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.2           No Professional Advice.  The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.

 

  1. Limitation of Liabilities.   

10.1           Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FITSAFE, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL FITSAFE, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (a) CUSTOMER’S USE, OR INABILITY TO USE, THE SERVICES, EQUIPMENT, OR FITSAFE MATERIALS; (B) ANY CUSTOMER DATA, INCLUDING ANY UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER DATA; (c) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; AND/OR (d) ANY HARMFUL CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, EQUIPMENT, OR ANY FITSAFE MATERIALS.
10.2           Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF FITSAFE, ITS AFFILIATES,AND ITS AND THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, and service providers UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO FITSAFE UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3           Basis of the Bargain. THE LIMITATIONS OF LIABILITY HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECT A FAIR ALLOCATION OF RISK. THE SERVICES AND FITSAFE MATERIALS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

 

  1. Export Compliance.   

Customer acknowledges that the Equipment and FitSafe Materials are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any other person or entity to, remove or export from the United States or allow the export or re-export any Equipment or FitSafe Materials or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the United States Commerce Department’s Table of Denial Orders or United States Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import laws of any United States or foreign agency or authority.

 

  1. Additional Terms for Certain Applications.   

The following additional terms and conditions apply to an Application only if it is designed for use on an Apple, Inc. (“Apple”) iOS-powered mobile device. Customer and FitSafe acknowledge that the Agreement is concluded between Customer and FitSafe only, and not with Apple, and FitSafe, not Apple, is solely responsible for the Application and the content thereof. Customer agrees that its license to use the Application is limited to the Apple iOS mobile device that Customer owns or controls and that Customer’s use of the Application shall be subject to the usage rules set forth in Apple’s then-current App Store Terms of Service. Customer and FitSafe agree that Apple shall have no obligation to provide maintenance and support services with respect to the Application. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Application. Customer agrees that FitSafe, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the Application. Customer represents and warrants that Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties. FitSafe’s contact information for any questions or inquiries with respect to the Application is set forth in Section 13.3 below. Customer agrees to comply with all applicable third party terms of agreement when using the Application. Customer agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service applicable to the Application. Upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against Customer as a third party beneficiary thereof.

 

  1. General.   

13.1           Entire Agreement; Amendment. The Agreement (including these Terms of Service and the Privacy Policy) constitutes the sole and entire agreement of the parties with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, proposals, agreements, or communications, both written and oral, with respect to such subject matter. No amendment to or modification of the Agreement is effective unless it is agreed to by both parties in writing.
13.2           Geographic Restrictions. FitSafe does not represent that the Service or any FitSafe Materials are appropriate or available for use outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside the United States, Customer does so on its own initiative and are responsible for compliance with all applicable laws.
13.3           Notices. Customer agrees that FitSafe may communicate any notices to Customer under the Agreement through electronic mail, by posting on FitSafe’s website, or by regular mail. Notices will be deemed effectively given to Customer immediately when sent by electronic mail or posted on FitSafe’s website, or two (2) business days after being sent by regular mail. All notices, requests, and other communications to be given to FitSafe hereunder shall be in writing and sent to FitSafe by registered or certified mail, postage prepaid, return receipt requested to the following address: FitSafe, Inc., 5314 River Run Drive, Suite 150, Provo, Utah 84604 (or to such other address that FitSafe may designate from time to time in accordance with this Section 13.3). Notices will be deemed effectively given to FitSafe when received.
13.4           Governing Law; Jurisdiction and Venue. The Agreement as well as any dispute or claim arising out of or related to the Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to the Agreement shall be instituted exclusively in the federal or state courts located in New York, New York, and Customer further agrees that such courts shall have in personam jurisdiction and venue with respect to Customer. Customer hereby submits to the in personam jurisdiction and venue of such courts and hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
13.5           Limitation on Time to File Claims; Waiver of Jury Trial.  ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT.
13.6           Miscellaneous. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without FitSafe’s prior written consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Any remedy of FitSafe set forth in the Agreement is in addition to any other that may be available to FitSafe at law, in equity, or otherwise. FitSafe’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of the Agreement will continue in full force and effect. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties. Unless the context otherwise requires, for purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (e) the headings in the Agreement are for reference only and do not affect the interpretation of this Agreement; and (f) the parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

13.3           Default. If any required payment under this Agreement is not paid when due, or if an event of default occurs, then the entire amount due under this Agreement, and any accrued interest thereon shall become immediately due and payable. User shall be liable for any and all collection fees, attorney fees, and associated costs incurred by FitSafe in the effort to collect monies due in the event of breach or default of this Agreement.

 

  1. Definitions.   

Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.

Customer Data” means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to FitSafe, directly or indirectly, by Customer or a User in connection with any of the Services.

Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services.

FitSafe Materials” means the FitSafe Systems, Software, and any and all other information, data, documents, materials, works, and other content that are provided or used by FitSafe in connection with the Services or otherwise comprise or relate to the Services or FitSafe Systems, including any third party materials contained therein, but excluding the Customer Data.  For the avoidance of doubt, FitSafe Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of FitSafe under this Agreement.

FitSafe Systems” means the information technology infrastructure used by or on behalf of FitSafe in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by FitSafe or through the use of third party services.

Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any User from accessing or using the Service or FitSafe Systems as intended by this Agreement.

Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.

Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.

Software” means FitSafe’s proprietary software applications (including the Applications) and any third party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that FitSafe provides access to and use of as part of the Services.

User” means an business or individual who has purchased Software or employee of Customer.