MOBILE APPLICATION AND SERVICES END USER SOFTWARE LICENSE AGREEMENT AND TERMS OF SERVICE
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE "ACCEPT" BUTTON AND YOU MAY NOT USE THE FITMUSES MOBILE APPLICATION TO WHICH THIS LICENSE APPLIES.
1. GENERAL. 1.1 The FITMUSES Mobile Application accompanying this License and use of the Website are licensed, not sold, to You by FITMUSES, LLC ("FITMUSES", "us", "we") for use strictly in accordance with this License and these Terms of Service and the applicable usage rules established by any third party mobile device platform or service provider or the third party from whom You are downloading the Mobile Application (as defined in section 1.2) that relate to Your Mobile Device (as defined in section 2.1) ("Usage Rules"), which are incorporated herein by reference. Certain Usage Rules are described in Section 19 of this License, however it is Your responsibility to determine what Usage Rules apply to Your use of the Mobile Application and Services, as they may be applicable to You depending on (i) Your Mobile Device, (ii) the method by which You downloaded the Mobile Application or accessed the preloaded Mobile Application, and (iii) the third party from whom You downloaded the Mobile Application or accessed the preloaded Mobile Application.
1.2 The term "FITMUSES Mobile Application, Website and Services" (collectively, the "Service") shall refer to and consist of the following: (i) the FITMUSES mobile software application, previously defined as the Mobile Application accompanying this License, together with various other FITMUSES-powered mobile applications and certain third-party integrated mobile device software applications, together with any software code, scripts, interfaces, graphics, displays, text, documentation and other components; (ii) any updates, modifications or enhancements to the items listed in subsection (i); and (iii) any of the Internet-based, interactive information services, general and personalized content, and interactive tools provided by FITMUSES that may be used or accessible by means of the Mobile Application or via the Website.
1.3 As part of the Services, we use a diverse range of proprietary and authorized third party information, listings, directories, text, advertisements, User Generated Content (as defined herein), photographs, designs, graphics, images, sound and video recordings, animation and other material and effects (which we collectively call the "Material") available by means of the Service FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY. Accordingly, You may view, use, copy, and distribute the Material obtained by means of the Service for individual, noncommercial, informational purposes only and in compliance with this License and all applicable laws.
1.4 By using the Service You are representing that You are of legal age (18 years and over) and of legal competence to enter into a binding agreement with FITMUSES and are not otherwise prohibited from using or receiving the Services pursuant to these Terms of Service and any applicable Usage Rules and/or the laws of the local or national jurisdiction from which You are accessing or using the Service. If You are not able to make the representations in the preceding sentence, You are prohibited from accepting this License and using the Service, however, any unauthorized use of the Service by You shall be subject to this License until your unauthorized usage terminates. By using the Service on behalf of any third party You are representing to us that You are an authorized representative of that third party and that Your use of the Service represents their acceptance of the License.
1.5 We recommend that You retain a copy of this License, Terms of Service and the applicable Usage Rules in either electronic or tangible format for Your subsequent reference. You can access a Web-based version of this License and Terms of Service by visiting http://www.fitmuses.com/tos.
2.0 . LICENSE GRANT AND RESTRICTIONS ON USE.
2.1 FITMUSES grants You a revocable, non-exclusive, non-transferrable, limited right to install and use the Mobile Application on a single mobile telephone or device controlled by You (each a "Mobile Device"), and to access and use the Service on such Mobile Device or via the Website strictly in accordance with the terms and conditions of this License, Terms of Service and the applicable Usage Rules.
2.2 You shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Mobile Application or Service; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Mobile Application or Service; (iii) violate any applicable laws, rules or regulations in connection with Your access or use of the Service; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of FITMUSES or its affiliates, partners, suppliers or the licensors of the Service or otherwise obscure or modify the any manner in which the Service is displayed by means of the Mobile Application or Website; (v) install, use or permit the Mobile Application to exist on more than one Mobile Device at a time or on any other mobile device or computer, other than by means of Your separate downloads of the Mobile Application, each of which are subject to a separate licenses (this restriction however does not limit Your right to reinstall the Mobile Application on the specific Mobile Device for which it was downloaded); (vi) distribute or link the Service to multiple Mobile Devices or other services; (vii) make the Service available over a network or other environment permitting access or use by multiple Mobile Devices or users at the same time; (viii) use the Service for data mining, scraping, crawling, redirecting, or compiling a collection of listings or data for any purpose (including, without limitation, for use by a listing product or listing service that is, directly or indirectly, competitive with or in any way a substitute for any services offered by FITMUSES) other than one authorized pursuant to this License; (ix) use the Service to send automated queries or to send any unsolicited commercial e-mail; (x) use the Service to attempt to interfere with the proper functioning and display of the proper operation and usage of the Service or the Website by any other authorized users and third parties; or (xi) use any proprietary information or interfaces of the Service or other intellectual property for any reason.
2.3 You agree that you will not use the Service for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended (except that FITMUSES and its affiliates and their respective employees are expressly permitted to use the Service for the internal business purposes of FITMUSES and its affiliates). By using the Service, You agree that You will not copy, reproduce, alter, modify, create derivative works from, rent, lease, loan, sell, distribute or publicly display any of the Material (except for Your own personal, non-commercial use) accessed by the Service without the prior written consent of FITMUSES. In addition, You will not use the Material for any unauthorized non-commercial marketing and promotional campaigns, target or mass solicitation campaigns or political campaigning. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE TO ENABLE THE TRANSMISSION OF UNSOLICITED VOICE MESSAGES, FACSIMILES OR EMAILS IS IN VIOLATION OF THIS LICENSE AND MAY BE IN VIOLATION OF UNITED FEDERAL AND STATE LAWS AND REGULATIONS THAT MAY SUBJECT YOU TO PENALTIES UNDER APPLICABLE LAWS.
2.4 Some or all of the Service may be provided by an affiliate or subsidiary of FITMUSES or a third party, and You may be subject to both this License, Terms of Service and the terms of service of that third party. Certain portions of the Service may utilize or include third party software that is subject to open source and third party license terms ("Third Party Software"). You acknowledge and agree that Your right to use such Third Party Software as part of, or in connection with, any Mobile Application or the internet is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and Terms of Service and the terms of such open source or third party licenses with regard to Your use of the relevant Third Party Software, the terms of the open source or third party licenses shall control. In no event shall the Service or components thereof be deemed to be "open source" or "publicly available" software.
2.5 FITMUSES does not warrant that the Service will be compatible or interoperable with Your Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with Your Mobile Device or used to otherwise access the Website. You acknowledge and agree that FITMUSES and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
2.6 You acknowledge that You are responsible for addressing any third party claims relating to Your use or possession of the Service, and agree to notify FITMUSES of any third party claims relating to the Service of which You become aware. Furthermore, You hereby release FITMUSES from any liability resulting from Your use or possession of the Service, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
2.7 You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction(s) in which any Services was obtained. You represent and warrant that You are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist sponsoring" country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You also agree that You will not use the Services for any purposes prohibited by United States law.
2.8 You acknowledge that FITMUSES may from time to time issue upgraded versions of the Service, and may automatically electronically upgrade the version of the Mobile Application that You are using on Your Mobile Device. You consent to such automatic upgrading on Your Mobile Device, and agree that this License will apply to all such upgrades.
2.9 From time to time and without prior notice to You, we may change, expand and improve the Service. We may also, at any time, cease to continue operating part or all of the Service or selectively disable certain aspects of the Service or portions of the Service accessible by the Mobile Application and/or the Website. Any modification or elimination of the Service will be done in our sole and absolute discretion and without an ongoing obligation or liability to You. Your use of the Service does not entitle You to the continued provision or availability of the Service.
3.0 YOUR USE OF THE SERVICE.
3.1 You acknowledge and understand that certain portions of the Service may require and utilize phone service, internet access, data access or text messaging capability. Except as otherwise noted as part of the Services, FITMUSES does not charge for the use of Service, but carrier rates for phone, internet, data and text messaging may apply and You are responsible for any such charges, as well as, internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the internet and to be able to access the Website.
3.2 The functional use of the Service may be dependent on the data related to Your geographic location and geopositional data, and You acknowledge and agree that Your failure to provide (or make accessible) that data may limit the functionality of the Service. FITMUSES makes no warranty with respect to the accuracy of Service provided to You in reliance on location and geopositional data provided by You, the Mobile Application or via Your Mobile Device or the Website.
3.5 You are under no obligation to use or continue to use the Service and may temporarily or permanently cease use of the Service without notice to FITMUSES.
4.1 Certain personal information and other information provided by You in the use of the Service may be stored on Your Mobile Device and/or device used to access the Website even if such information is not collected by FITMUSES. It is Your responsibility to maintain the security of Your Mobile Device or other device (i.e. home computer) from unauthorized access.
5. INTELLECTUAL PROPERTY NOTICE.
5.1 You acknowledge and agree that (i) the Service, and any related Material, (including the design, text, graphics, pictures, video, information, applications, software, music, sound, and other files contained therein or related thereto), (ii) the source and object code of the Service, (iii) the format, directories, queries, algorithms, structure and organization of the Service, and/or accessed using the Service, (iv) the FITMUSES company names, logos, and all related products and service names, design marks and slogans, and (v) any and all copyrights, patents, trademarks, trade secrets, publicity rights and other intellectual property rights associated therewith (collectively, the "Intellectual Property,"), are the sole property of FITMUSES, its wholly-owned subsidiaries, affiliates, licensors, suppliers or other third parties. Except as expressly and unambiguously provided herein, You do not possess, and FITMUSES does not grant to You, any express or implied rights (whether by implication, estoppel or other legal theory) in or to any Intellectual Property (or the unauthorized use of the Intellectual Property) and all such rights are retained by FITMUSES, its subsidiaries, parent companies, affiliates and/or any third party owner of such rights. You acknowledge and agree that You, and not FITMUSES or any third party mobile device platform or service provider, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim or suit, or any other harm or damages resulting from Your use of or access to the Mobile Application, Website, Service and Material.
6. CONTENT LICENSE FROM YOU.
6.1 As between You and FITMUSES, You may possess certain intellectual property rights in content that You may submit, display and/or post via the Service, which is considered "User Generated Content." Your use of the Service and Your submission and/or posting of User Generated Content grants FITMUSES, and its affiliates, an express, perpetual, irrevocable, royalty-free, worldwide, and non-exclusive license to access, store, reproduce, adapt, modify, format, delete, translate, transmit, use, disclose, sublicense, manipulate, prepare derivative works, publish, publicly perform, publicly display, distribute and communicate any and all User Generated Content, without any obligation, notification or compensation to You. This license is granted to FITMUSES with respect to the use of such User Generated Content in connection with the Service and any subsequent version or modification thereof.
6.2 Your use of the Service and Your submission and/or posting of User Generated Content confirms Your representation and warranty that You posses all necessary legal rights, power and authority to grant to FITMUSES the foregoing license granted to FITMUSES and its affiliates and You further represent, warrant and agree that none of the User Generated Content will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain false, intentionally misleading, libelous, defamatory or otherwise unlawful statements.
6.3 FITMUSES is under no obligation to review any User Generated Content submitted, posted or otherwise displayed through the Service and assumes no responsibility or liability relating to any such User Generated Content. You may not imply that any User Generated Content is any way sponsored or endorsed by FITMUSES. FITMUSES reserves the right, but not the obligation, to refuse to post or remove any User Generated Content (or any portion thereof) at our sole and absolute discretion.
7. THIRD PARTY PROVIDER CONTENT AND SERVICES.
7.1 Some of the listings, advertisements, promotions, recommendations, advice, information, materials, content and services to which You may access by using the Service are owned or provided by third parties (collectively "Third Party Content Provider"). It is Your responsibility to monitor when You have accessed any such content or services that is not part of the Services (collectively, the "Third Party Provider Content and Service(s)") and we do not undertake any obligation to expressly notify You when You are accessing any Third Party Provider Content and Services that are not part of the Service. Third Party Provider Content and Services may include, without limitation, advertisements, other search and listing services, information and referrals, ratings services, geographic location and navigation services, businesses which allow You to bid for and/or purchase products or services, and other services of general or specific interest.
7.3 FITMUSES makes no representations whatsoever concerning (1) the information, software or other material appearing on, or accessible through, any Third Party Provider Content and Services or Other Sites (including without limitation, any advertisement for products or services), (2) the performance or operation of any Third Party Provider Content and Services or Other Sites (including, without limitation, any transactions initiated or conducted through any Third Party Provider Content and Services or Other Sites, any taxes associated therewith and any use by third parties of user credit card information), (3) any products or services advertised or sold on or through any Third Party Provider Content and Services or Other Sites (including, without limitation, the quality, safety and legality of such products or services or the sale thereof), or (4) the sellers of any products or services advertised or sold on or through any Third Party Content Provider Service or Other Sites. FITMUSES shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with Your use of Third Party Provider Content and Services or Other Sites or Your reliance on any such Third Party Content Provider content, goods or services, available on or through any Third Party Provider Content and Services or Other Sites.
8. CONTENT DISCLAIMER
8.1 Use of the Service may result in search results and information listings that may commingle advertising and sponsored business listings ("Paid Advertising Content") with other business listings that are not Paid Advertising Content. Depending on the text of user-provided search terms, Paid Advertising Content will be included in a search results list intermingled with other search results. We do not undertake to identify which content, if any, is Paid Advertising Content, however, You agree and acknowledge that results may be displayed in an order or manner which gives priority to Paid Advertising Content.
8.2 We make no guarantees or endorsements, nor can we be responsible for, any information accessible using the Service or included in the Material, including the currency, content, quality, copyright compliance or legality of such information, nor are we responsible for any resulting loss or damage relating to the use of such information. We reserve the right, in our sole discretion and without any obligation, to make improvements to, or correct any error or omissions in, any portion of the information accessible using the Service. Where appropriate, we will endeavor to update information accessed using the Service on a timely basis, but shall not be liable for any delay or inaccuracies related to such updates.
8.3 Use of the Services may result in the provision of information that some people find objectionable, inappropriate, or offensive. We are not responsible for the accuracy, relevancy, copyright compliance, legality, completeness, timeliness or decency of material contained in any externally linked websites or services.
8.4 FITMUSES makes no representation that any third party mobile device platform or service provider has endorsed the Service, and You should not rely on the availability of the Mobile Application by means of any mobile application catalog, storefront, or other means of downloading as an endorsement of the Mobile Application, the Service or FITMUSES generally. In no event shall any third party mobile device platform or service provider have any obligation to You whatsoever to furnish any maintenance and support services with respect to the Mobile Application.
9. THIRD PARTY CONTENT POLICY (YOUTUBE, VIMEO, ETC.).
Please note that with regard to any content made available on or through the Service which contains or displays a third party logo (i.e. YouTube, Vimeo, etc.) or which is provided via a third party’s player and is hosted on a third party’s servers; FITMUSES does not have the ability to permanently remove all or any such content from the third party’s servers. Therefore, if you have a complaint concerning any video content made available on the Service that is provided by a third party, you should contact the third party directly in accordance with copyright policies of the third party. If you believe that your work is available on the Service via a third party player in a way that constitutes copyright infringement, please: (1) contact the third party directly in accordance with its copyright policies; and (2) contact FITMUSES by sending us notice in accordance with Section 14, below
10. FITMUSES DISCLOSURES
10.1 When it comes to buying products or services when using the internet, it is recommended that You always conduct your own investigations. This includes buying any products or services offered or sold as part of, or through, the Service.
10.2 Unless we have stated otherwise, You should always assume that when products or services are made reference to on the Service, they are made because there exists a material connection between FITMUSES and the providers of the products and services displayed. It should be noted that this is not always the case.
10.3 FITMUSES will always recommend products and services based in part on a good faith belief that the supply of such products or services will help You. We have a good faith belief, because FITMUSES has either tried the products or services prior to making any recommendations, or We have researched the products or services based on the supplier’s history. The recommendations made by FITMUSES about the products or services are honest opinions based on facts known to us at the time a product or service is mentioned on the Service.
10.4 We have conducted all steps possible to verify the testimonials that appear on the Service on behalf of FITMUSES. They are treated as average user expectations based on the information that was available at the time of publishing them. They are not exaggerations of user results which We do not entertain in any form. Enquiries have been made to confirm their authenticity at all times. If a claim sounds untrue then We regard this as such and do not publish this on the Service.
10.5 Where extracts have been displayed from third party sources or content has been generated and posted by a third party source, these are in no way indicative of any kind of verifiable result, opinion, recommendation or otherwise. You are strongly cautioned to conduct your own due diligence prior to relying on such sources.
10.6 Our aim is to be 100% honest at all times. If however you find something displayed on the Service, which you do not agree with, then please contact us immediately at email@example.com and we will look into it. We reserve the right to withdraw the display of any product or service that does not reach our very high levels of satisfaction without any prior notice. Any honesty and integrity is important to Us at all times.
11. WARRANTY DISCLAIMER.
11.1 Any use of the Mobile Application, the Services, reliance upon any of the Material, and any use of the Internet generally shall be at Your sole risk. FITMUSES disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, licensure of Third Party Content Providers, reliability, or operability or availability of information or the Material accessible by use of the Service.
11.2 THE SERVICE (INCLUDING MATERIAL AND INFORMATION POSTED AND ACCESSIBLE THEREWITH) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FITMUSES DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MOBILE APPLICATION, WEBSITE, SERVICE AND MATERIAL. FITMUSES DOES NOT WARRANT THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE MOBILE APPLICATION, WEBSITE, SERVICE, MATERIAL, OR THE INTERNET GENERALLY, IS FREE OF VIRUSES, ERRORS, OTHER HARMFUL COMPONENTS, OR WILL BE UNINTERRUPTED. FITMUSES DOES NOT WARRANT THAT THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
11.3 FITMUSES DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY AND ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES FOR ANY INFORMATION, GOODS, OR SERVICES, OBTAINED THROUGH, ADVERTISED OR RECEIVED THROUGH ANY LINKS PROVIDED BY OR THROUGH THE SERVICE; OR REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MOBILE APPLICATION, WEBSITE,SERVICE AND MATERIAL.
11.4 NO ADVICE OR INFORMATION PROVIDED BY FITMUSES, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES AND AGENTS SHALL CREATE ANY WARRANTY.
11.5 NONE OF FITMUSES, ITS AFFILIATES, OR ANY ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS, MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING (1) THE OPERATION OR PERFORMANCE OF THE MOBILE APPLICATION, SERVICE, OR ANY THIRD PARTY PROVIDER CONTENT OR SERVICES OR OTHER SITES, (2) THE NATURE, CONTENT OR ACCURACY (EITHER WHEN ACCESSED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY INFORMATION, MATERIAL, APPARATUS OR OTHER PROCESS CONTAINED ON, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM THE MOBILE APPLICATION OR WEBSITE (INCLUDING WITHOUT LIMITATION, THOSE ACCESSED USING THIRD PARTY PROVIDER CONTENT OR SERVICES), (3) ANY PRODUCTS OR SERVICES PURCHASED THROUGH USE OF ANY THIRD PARTY PROVIDER CONTENT OR SERVICE OR OTHER SITE, OR ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT OR OTHER INFORMATION OR MATERIAL IN CONNECTION WITH ANY MOBILE APPLICATION, WESBITE OR (4) THE INTERNET GENERALLY.
11.6 SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION AND THAT MAY NOT BE LIMITED BY THESE TERM, PROVIDED HOWEVER YOU AGREE AND ACKNOWLEDGE THAT TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU WAIVE ANY SUCH STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
11.7 NEITHER FITMUSES, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS, WARRANTS THAT THE MOBILE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR MOBILE DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR MOBILE DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR MOBILE DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT THE DAMAGE TO YOUR MOBILE DEVICE, LOSS OF THE DATA LOCATED ON YOUR MOBILE DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR MOBILE DEVICE. YOU ACKNOWLEDGE AND AGREE THAT FITMUSES AND ITS AFFILIATES, PARTNERS, SUPPLIERS, LICENSORS, AND ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL FITMUSES OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS BE LIABLE TO ANY USER ON ACCOUNT OF SUCH USER'S USE, MISUSE OR RELIANCE ON THE MOBILE APPLICATION, WEBSITE AND THE SERVICE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, USE, OR DATA WHETHER BROUGHT IN WARRANTY, CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF FITMUSES OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS ARE AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR CONNECTED WITH (1) THE USE (OR INABILITY TO USE) OR PERFORMANCE OF THE SERVICE, (2) THE MATERIAL OR THE INTERNET GENERALLY, (3) RELIANCE UPON OR PERFORMANCE OF ANY MATERIAL CONTAINED IN OR ACCESSED FROM ANY MOBILE APPLICATION OR ANY THIRD PARTY PROVIDER CONTENT OR SERVICES OR OTHER SITES, OR (4) ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT OR OTHER INFORMATION OR MATERIAL ACCESSED USING THE MOBILE APPLICATION OR WEBSITE. NEITHER FITMUSES, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM OR SERVICE PROVIDERS, ASSUMES ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, TIMELINESS OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS OR OTHER MATERIAL ACCESSIBLE FROM THE MOBILE APPLICATION.
THE USER OF THE SERVICES ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICES GENERALLY.
THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, OR IF IT IS OTHERWISE DEEMED UNENFORCEABLE, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSIONS AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS; IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FITMUSES'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
13.1 You agree to indemnify and hold FITMUSES and, as applicable, our parent, subsidiaries, affiliates, partners, officers, directors, agents and employees, licensors, suppliers and Third Party Content Providers harmless from any claim or demand, including any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions, and liens, including reasonable attorneys' fees and costs, whether brought by third parties or otherwise, due to or arising out of: (i) Your breach of any representation, warranty, covenant or obligation set forth in this License and Terms of Service (or any other violation of Your agreement with FITMUSES on the basis of this License); (ii) Your use or misuse of any location information; (iii) any information, User Generated Content or other material transmitted, submitted or provided by You through the Service, including Your use of the Service to provide a link to another Website or to upload content or other information using the Mobile Application or Website and, without limitation, our exercise of our rights with respect to such information; (iv) Your violation of any law, or Your violation of the rights of a third party, including the infringement by You of any intellectual property or other right of any person or entity; (v) Your use of any User Generated or Third Party Provider Content and Services including, without limitation, (a) any information, software or other material viewed or accessed by You through any Third Party Provider Content and Services (including without limitation, any advertisement or coupon for products or services using any Third Party Provider Content and Services), (b) any transactions initiated or conducted by You through any Third Party Provider Content and Services (including, without limitation, any taxes associated therewith and any use by third parties of Your credit card information), (c) any products or services that You bid on, purchase or otherwise obtain through any Third Party Provider Content and Services (including, without limitation, the quality, safety and legality of such products or services or the sale thereof), (d) any reservations You make through any Third Party Content and Service, and (e) the conduct of sellers of any products or services that You bid on, purchase or otherwise obtain through any Third Party Provider Content and Service).
13.2 The foregoing indemnity obligations will survive any termination of this License and Terms of Service.
13.3 FITMUSES reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You, which will not excuse Your indemnity obligations under this Section. You agree not to settle any matter subject to the forgoing indemnification obligations without the express consent and approval of FITMUSES.
14. DIGITAL MILLENNIUM COPYRIGHT COMPLAINTS.
FITMUSES respects the copyright rights of others, and we ask our advertisers and other third parties to do the same. In appropriate circumstances and at our discretion, we may remove, suspend, terminate access, or take other appropriate action against users or other third parties who infringe or repeatedly infringe the copyright rights of others. Therefore, if You reasonably believe that any Material accessed using the Mobile Application or Services contain unauthorized reproductions of Your copyrighted work or otherwise infringe an exclusive copyright right, and You reasonably believe it is appropriate to notify us to take any action/and You want us to take any action, then, as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512), ("DMCA") You must promptly provide in writing the following information to our Designated Agent: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing 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 us to locate the material; (iv) information reasonably sufficient to permit us to contact You, such as an address, telephone number and e-mail address; (v) statement that You have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) a statement that the information in the notice is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our Designated Agent for the FITMUSES Services (and the FITMUSES Websites) is as follows:
ARC Law Group
Attn: DMCA Complaints
1388 Haight St., #101
San Francisco, CA 94117
ANY NOTICE THAT DOES NOT COMPLY WITH THE REQUIREMENTS OF TITLE 17, UNITED STATES CODE, SECTION 512(C)(3) WILL NOT RECEIVE A RESPONSE. NOTHING IN THIS SECTION 15.1 IS INTENDED TO EXPAND OR SUPPLEMENT THE LEGAL RIGHTS, PROCEDURES AND REMEDIES AUTHORIZED AND GRANTED UNDER DMCA AND WE DO NOT REPRESENT ANY RELATED UNDERTAKING BY FITMUSES NOT OTHERWISE EXPRESSLY REQUIRED BY APPLICABLE LAW.
FITMUSES may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate your use of the Service, including without limitation this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, and the Terms of Service, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by FITMUSES. Upon the termination, You shall cease all use of the Service and/or uninstall the Mobile Application from Your Mobile Device. FITMUSES reserves the right to terminate or disable all or any portion of the Website, or of the Mobile Application (via update of the Mobile Application).
16. REMEDIES AVAILABLE TO US.
FITMUSES reserves the right to seek any and all remedies available at law or in equity in connection with Your violation of this License and/or the Terms of Service.
You may not assign this License or otherwise transfer this License, in whole or in part; any attempt to do so shall be void.
If for any reason a court of competent jurisdiction finds any provision of this License and/or Terms of Service to be invalid or unenforceable, the provision will be superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the License will continue in effect and remain fully enforceable.
19. LIMITED TIME TO BRING CLAIM.
You acknowledge and agree that that it is the intent of both You and FITMUSES to limit the period of time a claim may be filed, even if the period is shorter than that fixed by the statute of limitations. You therefore agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action accrues, otherwise such cause of action is permanently barred.
20.1 You are responsible for compliance with applicable laws, regulations and ordinances related to Your use of the Service. Your compliance with applicable laws is not limited to jurisdictions within the United States (including US Federal law) but also the laws, regulations and ordinances of any jurisdiction from which You access the Service.
20.2 This License and/or Terms of Service will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or Your actual state or country of residence, and You agree to submit to personal jurisdiction in Los Angeles County, California. You agree to exclude, in its entirety, the application to this License of the United Nations Convention on Contracts for the International Sale of Goods.
20.3 Any notices required to be given under this License shall be given in writing and shall be delivered to the following address:
c/o ARC Law Group
1388 Haight St., #101
San Francisco, CA 94117
20.4 Except as expressly stated herein, this License and/or Terms of Service constitutes the entire agreement between You and FITMUSES with respect to Your use of the Service, and it supersedes and replaces all prior or contemporaneous communications, proposals, understandings or agreement, whether electronic, oral or written, between You and FITMUSES with respect to Your use of the Service and/or the subject matter of this License and/or Terms of Service.
20.5 Except as provided in this Section 20.5, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. Notwithstanding the foregoing, You acknowledge and agree that each of FITMUSES's associated mobile device platform and service providers are third party beneficiaries to this License, and that, upon Your acceptance of the terms and conditions of this License, such associated mobile device platform and service providers will have the right to enforce this License and/or Terms of Service against You in its capacity as a third party beneficiary to this License.
20.6 Any waiver of any provision of this License will be effective only if in writing and signed by You and FITMUSES. Our failure to enforce our rights and remedies available to us with respect Your breach of this License shall not constitute a waiver of such breach nor of any prior, concurrent, or subsequent breach of the same or any other provision of this License.
20.7 To be removed from future FITMUSES marketing e-mail campaigns, please e-mail firstname.lastname@example.org.
21. USAGE RULES, ADDITIONAL OBLIGATIONS/RIGHTS RELATED TO YOUR MOBILE DEVICE.
21.1 Without limitation, Your use of the Services with a Palm® Pre™ smartphone or via download from any Website operated by Palm, Inc. is subject to Usage Rules established by Palm, Inc., located in the Palm® application store agreement the applicable provisions of which are incorporated herein by this reference. You may not imply that any User Generated Content is any way sponsored or endorsed by Palm, Inc.
21.2 Without limitation Your use of the Services with an Android ® enabled smartphone or via download from any Website operated by Google, Inc. is subject to the Usage Rules established by Google, Inc. located in the “Android Market” Terms of Service the applicable provisions of which are incorporated herein by this reference. You may not imply that any User Generated Content if in any way sponsored by Google. Inc.
21.3 Without limitation, Your use of the Services with a BlackBerry® smartphone or via download from any Website operated by Research in Motion Limited, including BlackBerry® AppWorld™ storefront, is subject to Usage Rules established by Research in Motion Limited, located at, or accessible through, the BlackBerry My World repository, the applicable provisions of which are incorporated herein by this reference.
21.4 Without limitation, Your use of the Mobile Application and Services with any Apple® device, including iPhone®, iPod touch® and iPad™ mobile digital device, is subject to the Usage Rules established by Apple Inc., including those terms set forth in the App Store Terms and Conditions located at http://www.apple.com/legal/itunes/ww/, the applicable provisions of which are incorporated herein by this reference. In the event of any failure of the Mobile Application to conform to any applicable warranty, You may notify Apple Inc. and Apple Inc. will refund to You the purchase price for the Mobile Application, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever to You with respect to the Mobile Application. Apple Inc. is not liable for any claims by You or any third party relating to the Mobile Application, or Your possession or Your use of the Mobile Application, including, but not limited to, (i) any product liability claims; (ii) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
22. THIRD PARTY SOFTWARE NOTICES.
Portions of the Mobile Application are provided with notices and open source licenses from such communities and Third Parties that govern the use of those portions, and any licenses granted pursuant to this License do not alter any rights and obligations You may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this License and/or Terms of Service will apply to all elements of the Service.
23. CHANGES OR MODIFICATIONS
FITMUSES reserves the right to add, delete, change or modify parts of this License and Terms of Service at our sole discretion and at any time without notice or liability to you. If we do this, we will post the changes on this page and will indicate the effective date of the change at the bottom of the page. It is important for you to refer to this License and Terms of Service from time to time to make sure that you are aware of any additions, revisions, or modifications that we may have made. Your continued use of the Service constitutes your acceptance of the modified License and/or new Terms of Service.
Last updated: December 17, 2012