WHEN YOU CLICK ON THE “I ACCEPT” BUTTON OR WHEN YOU OTHERWISE INSTALL OR USE ANY PART OF THE FAN HEALTH NETWORK WEB AND MOBILE APPLICATION, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE ANY PART OF THE APPLICATION (AND, IF APPLICABLE, CLICK THE “I DO NOT ACCEPT” BUTTON), AND YOU WILL NOT BE AUTHORIZED TO USE OR HAVE ANY LICENSE TO USE ANY PART OF THE APPLICATION.

FAN HEALTH NETWORK WEB AND MOBILE APPLICATION

END USER LICENSE AGREEMENT AND TERMS AND CONDITIONS OF USE

IMPORTANT READ CAREFULLY:  This End User License Agreement and Terms and Conditions of Use (“Agreement”) is a legal and binding agreement between you (“You”, “Your”, or “Licensee”) and Fan Health Network, LLC (“FHN” or “Application Provider” or “Us”) regarding the Fan Health Network web and mobile application You are about to download, install, or otherwise use and the associated proprietary media, printed materials, any associated documentation (including any electronic documentation), and also any updates or modifications of the foregoing provided by FHN or its licensors or agents to You (collectively, the “Licensed Application”).

 

1.         License to Use.  The Licensed Application is licensed, not sold, to You by the Application Provider for use only under the terms of this Agreement.  Your use of the Licensed Application constitutes your agreement to these terms unless you are party to a separate license agreement with Us, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. Additional and/or different terms and conditions of use may apply to services or products provided through one or more of the Application Provider’s partners, advertisers, or business associates, and You should refer to such terms and conditions before accessing, purchasing, using, or subscribing to such services or products.  The Application Provider reserves all rights not expressly granted to You.

 

2.         Privacy Policy.  By using the Licensed Application, You consent to the collection and use of certain information about You, as specified in the Privacy Policy.  Use of information we collect now is subject to the Privacy Policy in effect at the time such information is used.  This Section 2 shall survive any termination of this Agreement.

 

3.         Scope of License. 

  1. This license granted to You for the Licensed Application by the Application Provider is limited to a non-transferable license to use the Licensed Application on any mobile device that You own or control exclusively for non-commercial, personal purposes only.
  1. This license does not allow You to use the Licensed Application on any mobile device that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time.  You may not use the Licensed Application for any commercial purposes.  You may not transfer, rent, lease, lend, sell, redistribute, sublicense the Licensed Application.  You may not remove any proprietary notices, labels, or marks on the Licensed Application.  You may not copy, decompile, translate, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application).  You may not use the Licensed Application in any manner that will or could result in a violation of the rights of any third party.  Any attempt to do any of the foregoing outlined in this Section 2(b) is a violation of the rights of the Application Provider and its licensors.  If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Application Provider that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
  1. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained.  In particular, but without limitation, the Licensed Application may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.  Any attempt to do any of the foregoing outlined in this Section 2(c) is a violation of the rights of the Application Provider and its licensors.  If You breach this restriction, You may be subject to prosecution and damages.
  1. The Application Provider expressly reserves all copyrights, patents, trademarks, service marks, and all other intellectual property in and to the Licensed Application.  This Agreement constitutes a software license and not a purchase agreement.  No part of the Licensed Application shall be considered a “Work Made for Hire” (as such are defined under federal and international copyright laws) or otherwise.  This Section shall survive any expiration or termination of this Agreement.

 

4.         Consent to Use of Data, Information, and Content.  You agree that Application Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You related to the Licensed Application. Application Provider may use this information to improve its products or to provide services or technologies to You.  APPLICATION PROVIDER MAY ALSO USE OR DISCLOSE ANY DATA, INFORMATION OR CONTENT PROVIDED BY YOU TO ITS AFFILIATES OR PARTNERS.  YOUR INSTALLATION OF THE LICENSED APPLICATION CONSTITUTES YOUR CONSENT TO THE APPLICATION PROVIDER’S USE OF SUCH DATA, INFORMATION OR CONTENT AND DISCLOSURE OF THE SAME TO THIRD-PARTIES; YOU ARE NOT ENTITLED TO ANY COMPENSATION OR OTHER PAYMENT FROM THE APPLICATION PROVIDER IN CONNECTION WITH THE USE OR DISCLOSURE OF SAID DATA, INFORMATION OR CONTENT.  Additionally, certain data, information or content that you upload or post in connection with your use of the Licensed Application may be seen by others.  This Section 4 shall survive any termination of this Agreement.

 

5.          No Medical Services or Advice; No Doctor-Patient Relationship.  THE LICENSED APPLICATION DOES NOT PROVIDE, CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, ANY PROFESSIONAL MEDICAL SERVICES, ADVICE OR OPINION.  The Licensed Application is provided to You free of charge for informational purposes only.  The Licensed Application is not a medical professional, and is not a substitute for the advice of a medical professional.  The information made available on or through the Licensed Application should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition.  If You require medical advice or services, You should consult a medical professional.  YOUR USE OF THE LICENSED APPLICATION DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND THE APPLICATION PROVIDER.  YOU HEREBY AGREE THAT, BEFORE USING THE LICENSED APPLICATION OR AS NECESSARY DURING YOUR USE THEREOF, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM EXERCISE OR CHANGES IN YOUR DIET.  This Section 5 shall survive any termination of this Agreement.

 

6.         Term and Termination.  The license provided under this Agreement is effective until terminated by You or Application Provider. Your rights under this Agreement will terminate automatically without notice from the Application Provider if You fail to comply with any terms of this Agreement.  Upon termination of the Agreement, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.

The Application Providers reserves the right to modify, suspend, or discontinue the Licensed Application (or any part or content thereof) at any time with or without notice to you, and the Application Provider will not be liable to you or to any third party should it exercise such rights.

 

7.         Fees.  The Licensed Application is provided to You free of charge.  Notwithstanding the foregoing, the Application Provider reserves the right to assess fees for the purchase of goods or services made from within the Licensed Application by users either via the Licensed Application’s website or after it is installed on a user’s mobile device.  This Section 7 shall survive any termination of this Agreement.

 

8.         User Information; Password Protection.  In order to utilize the Licensed Application, You will be required to provide an e-mail address, a password, and Your date of birth; additionally, You may optionally furnish other information such as your name, height, weight and gender.  You represent and warrant that all user information You provide upon registration or otherwise in connection with Your use of the Licensed Application and Services will be current, complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy by visiting your personal profile.  You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account or password of any other member at any time. You agree to notify the Application Provider immediately of any unauthorized use of Your account or password.  The Application Provider is not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by the Application Provider, its affiliates, officers, members, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.  This Section 8 shall survive any expiration or termination of this Agreement.

 

9.         Public Profiles; Information Provided by Members. As part of registration, members must create public profiles, which may contain certain identifying information (such as age, location, total weight loss, ethnicity, marital status, religion, etc.).  In addition, members have the option to post photographs, videos and other information (such as likes and dislikes) on their public profiles.  The Application Provider relies on its members to provide current and accurate information, and the Application Provider does not, and cannot, investigate information contained in member public profiles. Accordingly, the Application Provider must assume that information contained in each member public profile is current and accurate. THE APPLICATION PROVIDER DOES NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF PUBLIC PROFILE INFORMATION, AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION PROVIDED BY MEMBERS BY MEANS OF PUBLIC PROFILES OR OTHERWISE IN CONNECTION WITH THE LICENSED APPLICATION AND THE SERVICES.  This Section 9 shall survive any termination of this Agreement.

 

10.       User Content. “User Content” is any content, materials or information (e.g., any text, information, photos, images, video, and other content and material) that You upload or post to, or transmit, display, perform or distribute by means of the Licensed Application or the Services, whether in connection with Your use of the Application Provider’s website, the Licensed Application, or through the use of any Third Party Materials, Services or websites or otherwise. You hereby grant the Appilcation Provider and its members, officers, directors, employees, agents, affiliates, representatives, service providers, partners, sublicensees, successors, and assigns (collectively, the “Application Provider 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 Licensed Application or the Services or any other similar services or related business, in any medium now existing or later devised, including without limitation in advertising and publicity.  You further agree that this license includes the right for the Application Provider Parties to publish, display or otherwise use and make available Your User Content and possibly Your name and/or any user name of Yours in connection with their exercise of the license granted under this Section 10.  You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Application Provider Parties of the rights granted under this Section 10, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this Section 10.

You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the Application Provider under this Section 10. You represent and warrant that, when using the Application Provider’s website, the Licensed Applications and Services, You will obey the law and respect the intellectual property rights of others. Your use of said website, the Licensed Application and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.  YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE APPLICATION PROVIDER’S WEBSITE, THE LICENSED APPLICATION AND SERVICES. YOU BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.

The Application Provider reserves the right to (a) remove, suspend, edit or modify any User Content in its sole discretion, including without limitation any User Content at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if the Application Provider is concerned that you may have violated this Agreement), or for no reason at all and (b) to remove, suspend or block any User Content submissions.  The Application Provider also reserves the right to access, read, preserve, and disclose any information as the Application Provider reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of the Application Provider, its users and the public.

This Section 10 shall survive any termination of this Agreement.

 

11.       Public Forums. “Public Forum” is any area, site or feature offered as part of the Licensed Application or Services (including without limitation public profiles, discussion forums, message boards, blogs, chat rooms, emails or instant messaging features) that enables You (a) to upload, submit, post, display, perform, distribute and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other members or visitors.  You acknowledge that Public Forums, and features contained therein, are for public and not private communications.  You further acknowledge that anything You upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum may be viewed on the internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting.  You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum and for the consequences of submitting or posting same.  THE APPLICATION PROVIDER DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR PUBLIC FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED THEREON.  This Section 11 shall survive any termination of this Agreement.

 

12.       Your Responsibility for Defamatory Comments. You agree and understand that you may be held legally responsible for damages suffered by other members or third parties as the result of Your remarks, information, feedback or other content posted or made available on the Services that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, the Application Provider is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content posted or made available on the Licensed Application, the Application Provider’s website, or the Services.  This Section 12 shall survive any termination of this Agreement.

 

13.       Objectionable Content.  You represent and warrant that You shall not use the Licensed Application, the Application Provider’s website, or the Services to upload, post, 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 Application Provider agreement, guidelines or policy; or (i) is generally offensive or in bad taste, as determined by the Application Provider (collectively, “Objectionable Content”).  THE APPLICATION PROVIDER DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENTS OF THE LICENSED APPLICATION, ITS WEBSITE, OR THE SERVICES AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other remedies, The Application Provider reserves the right to terminate Your use of the Licensed Application or Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. The Application Provider, in its sole discretion, may delete any Objectionable Content from its servers. The Application Provider 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.  This Section 13 shall survive any termination of this Agreement.

 

14.       Prohibited Uses. The Application Provider imposes certain restrictions on Your use of the Licensed Application and the Services. You represent and warrant that You will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to the Application Provider or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) create more than one unique public profile; (e) harvest or otherwise collect information about users of the Licensed Application, including but not limited to email addresses and phone numbers; (f) 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 Licensed Application, the Application Provider’s website or the Services for any use, including without limitation use on third-party websites; (g) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Licensed Application, Services, the Application Provider’s website or any associated system or network, or breach security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Application Provider’s website, the Licensed Application 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”; (j) use the Licensed Application or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (k) 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 Licensed Application, the Application Provider’s website, or the Services; (l) 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 (m) 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 Application Provider Parties in providing its website or the Licensed Application.  Any violation of this Section 14 may subject You to civil and/or criminal liability.  This Section 14 shall survive any termination of this Agreement.

 

15.       Your Interactions with Other Members.  YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE APPLICATION PROVIDER HAS NOT, AND DOES NOT, IN ANY WAY: (A) SCREEN ITS MEMBERS; (B) INQUIRE INTO THE BACKGROUNDS OF ITS MEMBERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS MEMBERS, INCLUDING WITHOUT LIMITATION INFORMATION OR REPRESENTATIONS CONTAINED IN PUBLIC PROFILES. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER MEMBERS, PARTICULARLY IF YOU DECIDE TO MEET ANOTHER MEMBER IN PERSON. THE APPLICATION PROVIDER DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS MEMBERS OR THEIR COMPATIBILITY WITH YOU. IN NO EVENT SHALL THE APPLICATION PROVIDER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY MEMBER’S CONDUCT IN CONNECTION WITH SUCH MEMBER’S USE OF THE LICENSED APPLICATION OR SERVICES, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR THE LICENSED APPLICATION OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS BETWEEN MEMBERS. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE, LICENSED APPLICATION AND SERVICES.  This Section 15 shall survive any termination of this Agreement.

 

16.       Member Disputes. The Application Provider reserves the right, but disclaims any perceived, implied or actual duty, to monitor disputes between members. You agree to hold the Application Provider harmless in connection with any dispute or claim You make against any other member.  This Section 16 shall survive any termination of this Agreement.

 

17.       Product Payments, Taxes and Refund PolicyYou agree that You will pay for all products you purchase through the Licensed Application (hereinafter “In-Application Purchases”), and that the Application Provider may charge your payment method for any In-Application Purchases and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account.  YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING THE APPLICATION PROVIDER WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES FOR ALL IN-APPLICATION PURCHASES.  Your total price will include the price of the In-Application Purchase plus any applicable sales tax; such sales tax is based on the bill-to address and the sales tax rate in effect at the time you download the In-Application Purchase.  We will charge tax only in states where digital goods are taxable.  All sales of In-Application Purchases are final.  Prices for In-Application Purchases may change at any time, and there is no price protection or refunds in the event of a price reduction or promotional offering.  If an In-Application Purchase becomes unavailable following a transaction but prior to download, your sole remedy is a refund.  If technical problems prevent or unreasonably delay delivery of your In-Application Purchase, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by the Application Provider.

 

18.       Limitations on Use.  You agree that you will use the Licensed Application exclusively for your own personal, non-commercial purposes, and not directly or indirectly for the use or benefit of anyone other than You, and only pursuant to the scope of the grant of the license set forth in this Agreement.  This Section 18 shall survive any termination of this Agreement.

 

19.       Limitations on Transfer.  You may not sell, transfer, convey, assign, sublicense and/or alienate (collectively, “Transfer”) any of Your rights under this Agreement in any way, including by operation of law, without the prior written consent of the Application Provider.  Any purported Transfer without such consent will be null and void ab initio, and will automatically terminate this Agreement.  This Section 19 shall survive any expiration or termination of this Agreement.

 

20.       Services; Third Party Materials.  The Licensed Application may enable access to Application Provider’s and third-party services and websites (collectively and individually, “Services”). Use of the Services may require Internet access and that You accept additional terms of service.

You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Licensed Application and Services at Your sole risk and that the Application Provider shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.

Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites.  THE APPLICATION PROVIDER 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 MATERIALS, SERVICES OR WEBSITES.  By using the Licensed Application and Services, You acknowledge and agree that the Application Provider is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials, Services or web sites.  THE APPLICATION PROVIDER 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 MATERIALS, SERVICES OR WEBSITES.  ACCORDINGLY, THE APPLICATION PROVIDER DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD-PARTY SERVICES, THIRD PARTY MATERIALS OR WEBSITES, OR FOR ANY OTHER MATERIALS, PRODUCTS, OR SERVICES OF THIRD PARTIES.  THE APPLICATION PROVIDER DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD PARTY MATERIALS, SERVICES OR WEBSITES.  Third Party Materials and links to other web sites are provided solely as a convenience to You.  Financial information displayed by any Services is for general informational purposes only and is not intended to be relied upon as investment advice.  Before executing any securities transaction based upon information obtained through the Licensed Application or Services, You should consult with a financial professional.  Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage.  Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by any Services.

YOU AGREE THAT, WHEN LINKING TO OR OTHERWISE ACCESSING OR USING ANY THIRD PARTY MATERIALS OR WEBSITES, YOU ARE RESPONSIBLE FOR: (A) TAKING PRECAUTIONS AS NECESSARY TO PROTECT YOU AND YOUR COMPUTER SYSTEMS FROM VIRUSES, WORMS, TROJAN HORSES, MALICIOUS CODE AND OTHER HARMFUL OR DESTRUCTIVE CONTENT; (B) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT IS OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR THAT CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (C) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, STATED OR UNSTATED; D) ALL FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD PARTIES RESULTING FROM TRANSACTIONS OR OTHER ACTIVITIES; AND (E) READING AND UNDERSTANDING ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE THIRD PARTY MATERIALS AND WEBSITES.

Certain features, aspects, products and services offered through the Licensed Application and Services are provided, in whole or in part, by third parties by “Third-Party Service Providers”).  In order to use third-party Services, You may be required to enter into additional terms and conditions with Third-Party Service Providers.  IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THOSE ADDITIONAL TERMS AND CONDITIONS, YOU MAY NOT USE THE RELATED THIRD-PARTY SERVICES. In the event of any inconsistency between terms and conditions relating to third-party Services and the terms and conditions of this Agreement, those additional terms and conditions will control, although only with respect to such third-party Services.  Third-Party Service Providers may collect and use certain information about You, as specified in the Third-Party Service Providers’ privacy policies.  Prior to providing information to any Third-Party Service Provider, you should review their privacy policy.  IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO THE TERMS OF A THIRD-PARTY SERVICE PROVIDER’S PRIVACY POLICY, YOU SHOULD NOT USE THE RELATED THIRD-PARTY SERVICES. THE APPLICATION PROVIDER HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE PROVIDERS.

Opinions, advice, statements, or other information, including, without limitation, food, nutrition and exercise data, made available by means of the Licensed Application and Services by third parties, are those of their respective authors, and should not necessarily be relied on. Such authors are solely responsible for such content.  THE APPLICATION PROVIDER DOES NOT: (A) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE LICENSED APPLICATION OR SERVICES; OR (B) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE LICENSED APPLICATION OR SERVICES.  UNDER NO CIRCUMSTANCES WILL THE APPLICATION PROVIDER BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE LICENSED APPLICATION OR THE SERVICES OR TRANSMITTED TO OR BY ANY THIRD-PARTY. You also understand that by accessing and using the Licensed Application and Services, You may encounter information, materials and subject matter that You or others may deem offensive, indecent, or objectionable. You agree to use the Licensed Application and Services at Your sole risk and that the Application Provider and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.

You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Licensed Application and Services.  No portion of the Licensed Application or Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Licensed Application or Services, in any manner, and You shall not exploit the Licensed Application or Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.  You further agree not to use the Licensed Application or Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Application Provider is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Licensed Application or Services.

In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from your mobile device are not available in all languages or in all countries.  The Application Provider makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.  The Application Provider, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice.  In no event will the Application Provider be liable for the removal of or disabling of access to any such Services. The Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

This Section 20 shall survive any termination of this Agreement.

 

21.       NO WARRANTY.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

THE APPLICATION PROVIDER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME THE LICENSED APPLICATION MAY BE UNAVAILABLE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE LICENSED APPLICATION AT ANY TIME, WITHOUT NOTICE TO YOU.

THE APPLICATION PROVIDER DOES NOT REPRESENT OR GUARANTEE THAT LICENSED APPLICATION WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE APPLICATION PROVIDER DISCLAIMS ANY LIABILITY RELATING THERETO.

THIS SECTION 21 SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.

 

22.       ASSUMPTION OF RISK; LIMITATION OF LIABILITY; EXCLUSIVE REMEDY.  YOU KNOWINGLY AND FREELY ASSUME ANY AND ALL RISK WHEN USING THE LICENSED APPLICATION.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL THE APPLICATION PROVIDER, ITS EMPLOYEES, MEMBERS, OFFICERS, SHAREHOLDERS, DIRECTORS, OR AFFILIATES BE LIABLE FOR ANY INJURIES OR DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, COST OF RECOVERY, BUSINESS INTERRUPTION, ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) AND EVEN IF THE APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE APPLICATION PROVIDER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.  THE APPLICATION PROVIDER SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE LICENSED APPLICATION, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND THE APPLICATION PROVIDER HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.  THE APPLICATION PROVIDER’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) SHALL BE LIMITED TO FIFTY DOLLARS ($50.00); THIS IS FOR EXCLUSIVE REMEDY.  YOU ACKNOWLEDGE THAT THE LICENSEE FEE REFLECTS THIS ALLOCATION OF RISK.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  THIS SECTION 22 SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.

 

23.       INDEMNIFICATION.  YOU SHALL INDEMNIFY AND HOLD HARMLESS THE APPLICATION PROVIDER AND ITS EMPLOYEES, MEMBERS, OFFICERS, SHAREHOLDERS, DIRECTORS, AND AFFILIATES (COLLECTIVELY THE “INDEMNIFIED PARTIES”) FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, SUITS, CAUSES OF ACTION, OBLIGATIONS, LOSSES, COSTS, EXPENSES, ATTORNEY FEES, DAMAGES, JUDGMENTS, ORDERS, AND LIABILITIES OF WHATEVER KIND OR NATURE IN LAW, EQUITY OR OTHERWISE (COLLECTIVELY, “CLAIMS”), ARISING FROM ANY OF THE FOLLOWING: (A) ANY ACTION OR OMISSION BY YOU THAT RESULTS IN INJURY, DEATH, LOSS TO PERSON OR PROPERTY, BREACH OF CONTRACT, INFRINGEMENT, OR VIOLATION OF STATE OR FEDERAL LAW; AND (B) ANY BREACH OF THIS AGREEMENT BY YOU; (C) YOUR ACCESS TO OR USE OF THE APPLICATION PROVIDER’S WEBSITE, THE LICENSED APPLICATION OR THE SERVICES; (D) YOUR PROVISION TO THE APPLICATION PROVIDER OR ANY OF THE INDEMNIFIED PARTIES OF INFORMATION OR OTHER USER CONTENT OR DATA; (E) YOUR VIOLATION OR ALLEGED VIOLATION OF ANY FOREIGN OR DOMESTIC, FEDERAL, STATE OR LOCAL LAW OR REGULATION; OR (F) YOUR VIOLATION OR ALLEGED VIOLATION OF ANY THIRD PARTY’S COPYRIGHTS, TRADEMARKS, 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 YOU OF ANY CLAIM AS TO WHICH YOU ARE REQUIRED TO DEFEND, INDEMNIFY OR HOLD HARMLESS THE INDEMNIFIED PARTIES.  YOU MAY NOT SETTLE ANY CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF THE CONCERNED INDEMNIFIED PARTIES.  THIS SECTION 23 SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.

 

24.       Maintenance.  The Application Provider shall have no duty to provide any support or other maintenance of any nature to You.  This Section 24 shall survive any termination of this Agreement.

 

25.       Amendment.  The Application Provider reserves the right, in its sole discretion and at any time, to modify this Agreement and to impose new or additional terms or conditions on your use of the Licensed Application. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement.  The Application Provider may modify or amend the Agreement by posting a new version on its website or issuing a change notice on its website or the Licensed Application.  IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY.  You will be deemed to have agreed to any such modifications or amendments by Your decision to continue using the Licensed Application following the date in which the modified or amended Agreement is posted.  This Section 25 shall survive any termination of this Agreement.

 

26.       Acceptance of Agreement.  Your use of the Licensed Application constitutes your acceptance of the terms of this Agreement and your electronic signature thereto.

 

27.       Captions.  Paragraph captions are used herein for reference only and are not intended, nor shall same be used, in interpreting this Agreement.

 

28.       Government Licensees and End Users.   This Section 28 shall apply if the Licensee or the Licensee’s end user is the United States and/or an agency, department, or division of the United States government.  The parties acknowledge and agree that the Licensed Application constitutes “commercial computer software” and “commercial computer software documentation” as defined in 48 C.F.R. 12.212 and was developed at private expense.  All government Licensees and end users acquire only those specifically stated in this Agreement.

 

29.      Entire Agreement.  This Agreement constitutes the entire agreement between You and the Licensed Provider and governs your use of the Licensed Application, superseding any prior agreements between You and the Application Provider. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The Application Provider’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. The Application Provider will not be responsible for failures to fulfill any obligations due to causes beyond its control.

 

30.       Governing Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without regard for its choice of law principals.  The parties agree that the sole and exclusive jurisdiction and venue for any dispute arising under this Agreement or the subject matter hereof shall be the state or federal courts having jurisdiction over Summit County, Ohio.  This Section 30 shall survive any termination of this Agreement.

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