THIS LICENSE AGREEMENT IS BETWEEN YOU AND US AND GOVERNS YOUR ACCESS AND USE OF OUR SERVICES. BY CLICKING “AGREE,” ACCEPTING THIS AGREEMENT, SIGNING AN ORDER FORM, OR BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
1. OUR SERVICES
1.1 Types of Services. We offer free and purchased Services to You, all of which are subject to the terms and conditions of this Agreement.
1.2 Free Trial. For Free Trial Services, You may access and use Our Services for a limited period of time on a trial basis, as described on Our website, in an Order Form or in the Documentation. At the end of such time period, any Client Data or other data you enter, and any customizations made to the Services by or for You, will be permanently lost unless you continue under a Free Services basis (if applicable), Purchased Services basis, or export such Client Data or other data before the end of the limited Free Trial Services time period.
1.2 Free Services. For Free Services, You may access and use Our Services on a free or without charge basis up to certain limits as described on Our website, in an Order Form, or in the Documentation. Usage over these limits requires Your purchase of the Services for continued access and use.
1.3 Purchased Services. For Purchased Services, You may access and use Our Services on a paid basis. For Purchased Services, We will (a) make the Services available to You pursuant to this Agreement, the Documentation, and any applicable Order Forms, and (b) provide standard support to You at no additional charge.
1.4 Support Services. Limited online training and online support for routine questions on the functionality of the Services is generally available at times specified by Us which are normally Monday to Friday (excluding New York Stock Exchange holidays) or as posted on Our website.
1.5 New Modules. We may, from time to time, develop certain enhancements, additional modules, or functionality that We may choose to offer to You under separate terms and conditions and for additional fees.
2. YOUR USE OF OUR SERVICES
2.1 Use of Service. Subject to the terms and conditions of this Agreement, an Order Form or the Documentation, You may use the Services to enter, modify, view, display, download, transmit, reproduce, and otherwise process Client Data and to perform other functions of the Services. Additional or updated Purchased Services may be added by amendment or Order Form during the Term, prorated for the remaining portion of the current Term, and any such additional or updated Purchased Services will terminate at the end of the Term, unless the Term is renewed or extended.
2.2 Your Responsibilities. You will (a) be responsible for the accuracy, quality and legality of Your Client Data, (b) be responsible for the proper application of all information, routines, and recommendations provided by Us, (c) be responsible for consulting qualified professionals prior to, and/or in conjunction with your consumption of our Services, and (c) comply with terms of service of any third-party products and services with which You use the Services.
2.3 Service Restrictions. Access to the Services is limited to the commercially available version thereof as subscribed to by You, as such Services may be updated from time to time. You will not (a) make any of the Services available to anyone other than Users, or use any of the Services for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service bureau or outsourcing offering, (c) use any of the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use any of the Services to store or transmit viruses or malicious code, (e) interfere with or disrupt the integrity or performance of any of the Services, (f) attempt to gain unauthorized access to any of the Services or its related systems or networks, (g) permit direct or indirect access to or use of any of the Services in a way that circumvents a contractual usage limit, (h) modify, copy, or create derivative works based on any of the Services, (i) monitor the availability, performance, functionality, or any other benchmarking of the Services for any competitive purpose, (j) disassemble, reverse engineer, or decompile any of the Services, or access it to (1) build a competitive product or service, or (2) build a product or service using similar ideas, features, functions or graphics of any of the Services. Any use of the Services in breach of this Agreement, the Documentation or any Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our Services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
2.4 Downtime. From time to time, Your access and use of the Services may be unavailable due to the following circumstances:
- (a) Planned downtime. We use reasonable efforts to schedule planned system maintenance and updates to occur after 7 p.m. (Mountain Time) and provide at least 5 business days’ advance notice of the actual down times for planned major maintenance upgrades which may require extended outages due to hardware or software upgrades that exceed 6 hours. Such upgrades will be performed weekends after Friday 7 p.m. (Mountain Time);
- (b) Emergency downtime. We may temporarily suspend any access and use of the Service without prior notice to maintain the security or integrity of the Services or Client Data. We may access Client Data in order to conduct audits, perform maintenance, or maintain the security of the Services and data contained in it; and
- (c) Other Downtime. Any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
3. FEES AND PAYMENT
3.1 Fees. You will pay on a monthly basis all Fees in accordance with this Agreement, unless otherwise agreed in an Order Form.
3.2 Renewal Fees. We reserve the right at any time to increase Fees for any renewal Term effective upon Us providing You with at least 30 days’ advance notice.
3.3 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form. Such charges shall be made in advance starting on the Effective Date unless specified otherwise, either annually, monthly or in accordance with any different billing frequency stated in the applicable Order Form. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
3.4 Suspension of Service and Acceleration. If any amount owing by You under this Agreement or any other agreement for Our Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement or other agreements with Us or Our Affiliates so that all Your obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.
3.5 Taxes. Our Fees do not include any Taxes. You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
4. PROPRIETARY RIGHTS AND LICENSES
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, and Our licensors reserve all of Our or their right, title and interest in and to the Services, including all of Our or their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Nothing in this Agreement grants to You or any third party any license or rights to use Our intellectual property or proprietary rights except in conjunction with Your authorized use of the Services.
4.2 License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, reproduce, display, use, transmit and prepare derivative works from Your Client Data or any other data or code created by You or for You as part of using the Services, as reasonably necessary for Us to provide, and ensure proper operation of, Our Services and any associated systems in accordance with this Agreement.
4.3 Use of Aggregate Data. You agree that We may collect, use, analyze and disclose data derived from Your use of the Services, including Your Client Data, for analysis, benchmarking, analytics, marketing, and other business purposes as long as such data is made available only on an anonymous or aggregated basis and that neither Your identity nor the identity of any persons associated with You or any Users is made available or publicly disclosed.
4.4 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our Services and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our Services. Such feedback and any fixes or enhancements based on such feedback shall be treated as Confidential Information, unless otherwise agreed.
4.5 Third-Party Licenses. From time to time, We or third parties may make available Third-Party Applications. Third-Party Applications may have their own terms and conditions of use and Your use of Third-Party Applications will be governed by and subject to such terms and conditions of those third parties. You understand and agree that We do not endorse and are not responsible or liable for any behavior, feature, or content of any Third-Party Applications, even if it causes any disclosure, modification or deletion of Your Client Data or causes interruptions in the availability of the Services. If You choose to use Third-Party Applications, You grant Us all requisite and necessary permission to allow the Third-Party Application and its provider to access Your Client Data as required for the interoperation of the Third-Party Application with the Services.
4.6 Ownership of Data. By using our Services to record data about you, your physical characteristics, and your workout history, or such data about your clients, you grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use such data to improve our Services, develop proprietary fitness algorithms, and otherwise create product offerings through the analysis of such data, provided that such data is used only on an anonymous or aggregated basis and that neither Your identity nor the identity of any persons associated with You or any Users is made available or publicly disclosed. All data recorded using our Services, and all insights gathered and products developed from analyzing such data, will be solely owned by Us.
5.1 Treatment of Confidential Information. The Receiving Party agrees to (a) protect the Confidential Information of the Disclosing Party from unauthorized disclosure to any third party with appropriate administrative, physical and technical safeguards, using the same degree of care as the Receiving Party uses to protect its own highly confidential information and in no event using less than a reasonable standard of care, and (b) use the Confidential Information of the Disclosing Party only for a purpose within the scope of this Agreement. Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and subcontractors (including Our attorneys and accountants) who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Such obligation will exist for the Term of this Agreement and for a period for 3 years thereafter to extent any Confidential Information is retained by the Receiving Party after termination of the Agreement.
5.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
6.1 Our Warranties. Subject to Section 6.5 below, We warrant that during the Term (a) this Agreement, any Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Client Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform substantially in accordance with the applicable Documentation, and (d) We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Our entire liability and Your sole and exclusive remedy for any breach of the preceding warranty is for Us, at Our option (1) to correct or provide a workaround for any documented and reproducible defect in the Services or any decrease in the overall security, or (2) to immediately terminate this Agreement and return a prorated portion of the Fees paid by You.
6.3 Your Warranties. You represent and warrant that You have the requisite legal rights to the Client Data that You enter into, transmit, process or store using the Services and that such Client Data and your use thereof does not and will not violate the rights on any third party. You acknowledge that You are solely responsible for ensuring that the Client Data entered into and transmitted using the Services is accurate and reflects Your requirements.
6.4. Data Disclaimer. Notwithstanding anything to the contrary in this Agreement, We have no duty or liability in connection with, and We disclaim all liability for (1) the accuracy of third-party information obtained by Us from You, (2) the accuracy, veracity, or completeness of the Client Data as provided to Us by You, (3) Your compliance with any laws, regulations, policies, or procedures relating to retention or integrity of Client Data, or (4) changes made to Client Data by parties approved by You (including changes made by Your agents).
6.5 Disclaimers. IF YOU ARE USING THE PURCHASED SERVICES, EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED ABOVE, WE DO NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF YOU ARE USING THE FREE TRIAL SERVICES OR THE FREE SERVICES, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ALL OF SECTION 6 (WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND SECTION 7.1 “INDEMNIFICATION BY US”, ANY USE OF SUCH SERVICES IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO SUCH SERVICES. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND OUR LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE OR FREE TRIAL SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF SUCH SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH SUCH SERVICES WILL BE ACCURATE. FURTHERMORE, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE OR FREE TRIAL SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
7.1 Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party (i) alleging that (a) any of Your Client Data or Your use of Your Client Data with Our Services, (b) a third-party application provided by or used by You, or (c) the combination of a third-party application provided by or used by You and used with Our Services, infringes or misappropriates such third-party’s intellectual property rights or violates any applicable laws, or (ii) arising from Your use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or any Order Form (each a “Claim Against Us”). You will indemnify Us from any damages, attorney fees and costs finally awarded against Us or for any amounts paid by Us under a settlement approved by You in writing as a result of a Claim Against Us provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
7.2 Exclusive Remedy. This Section 7 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section 7.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. OTHER THAN OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 ABOVE, IN NO EVENT SHALL OUR AGGREGATE LIABILITY TOGETHER WITH ALL OF OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF $20 OR THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL WE OR OUR AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES, GOODWILL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF CAPSHARE OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and shall continue for 30 days unless otherwise specified in an Order Form.
9.2 Renewal. Except as otherwise specified in an Order Form, the Term will automatically renew for successive additional monthly periods (each monthly period being a “Term”), unless either Party gives the other Party notice of non-renewal at least 30 days prior to the end of the applicable monthly Term.
9.3 Termination. A Party may terminate this Agreement for cause upon 30 days’ notice to the other Party if a material breach has occurred and such breach remains uncured at the expiration of such period, or if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For Free Services, this Agreement may be terminated by either Party upon providing at least 30 days’ notice to the other Party, or otherwise in accordance with this Agreement. For Purchased Services, this Agreement terminates when it is no longer renewed or is otherwise terminated in accordance with this Agreement or any Order Form. If You are using Free Trial Services, the Agreement terminates at the end of the Free Trial Services time period or, in Our sole discretion and for any or no reason, We terminate Your access or any part thereof. You agree that any termination of Your access to the Free Trial Services may be without prior notice (provided We will use reasonable efforts to provide advance notice), and You agree that We will not be liable to You or any third party for such termination.
9.4 Refund or Payment upon Termination. If this Agreement is terminated by You for cause in accordance with Section 9.3 (Termination), We will refund any prepaid Fees covering the remainder of the Term of any Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 9.3, You will pay any unpaid Fees covering the remainder of the Term of any Order Forms. In no event will termination relieve You of Your obligation to pay any Fees payable to Us for the period prior to the effective date of termination.
10. GENERAL PROVISIONS
10.1 Contracting Party. For this Agreement, You are contracting with FYTT, Inc., a Delaware corporation. Any Notices to FYTT related to this Agreement should be addressed to:
Attention: FYTT, Inc.
2701 North Thanksgiving Way Suite 100
Lehi, UT 84043
10.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the third business day after mailing, or (c) except for notices of termination or an indemnifiable claim, which shall clearly be identifiable as “Legal Notices”, the day of sending by email subject to acknowledgement of receipt. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant administrator designated by You.
10.3 Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of California without regard to its rules regarding conflicts of laws. The Parties agree to the exclusive jurisdiction and venue of the state and federal courts located in the city of San Francisco in the State of California for all issues, claims, or causes of action based upon or arising out of this Agreement or the transactions contemplated in this Agreement.
ARTICLE 1. THE PARTIES EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, INCLUDING CLAIMS BASED ON CONTRACT, TORT, BREACH OF DUTY, OR ANY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL.
10.4 Export Compliance And Anti-Corruption. The Services and any other technology We make available, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S. embargoed country or in violation of any U.S. export law or regulation. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at: firstname.lastname@example.org
10.5 Force Majeure. Neither Party will be in breach or default of this Agreement by reason of its delay or failure to meet any obligation hereunder due to any event, circumstance, or cause beyond its control such as, but not limited to, governmental regulation, acts of nature or terrorism, or failures of public internet infrastructure. The affected Party will be excused from performance for as long as such force majeure event prevents such Party from performing its obligations under this Agreement.
10.6 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding any Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
10.7 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (together with any Order Forms), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.8 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10.9 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.10 Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
10.11 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.12 Acceptance of Agreement. The Parties agree that this Agreement may be electronically accepted. Electronic acceptance of this Agreement may take the form of (a) a delivery of an executed counterpart of a signature page to this Agreement or any Order Form that references this Agreement (whether by print signature or by electronic signature), (b) online action such as clicking a button or ticking a box indicating Your acceptance, or (c) in the case of Free Services or Free Trial Services, by using the Services. Delivery of an executed counterpart of a signature page to this Agreement or any Order Form that references this Agreement by facsimile or by e-mail in PDF format shall be as effective as delivery of a manually executed counterpart of this Agreement. The Parties agree that the electronic signatures appearing on this Agreement or in any Order Form are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.
10.13 Authority. Each of the Parties hereto (if You are entering into this Agreement on behalf of a company or other legal entity) represents and warrants that it is duly formed and in good standing under the laws of the governmental entity of its formation; that it has all necessary rights, powers, and authority to enter into and perform this Agreement; that the execution, delivery, and performance of this Agreement has been duly authorized; and that the execution and performance of this Agreement will not breach any agreement, covenant, court order, judgment, or decree to which such Party is a party or by which it is bound. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to the terms of this Agreement, in which case, the terms “You” and “Your” shall refer to such entity and its Affiliates. Each Party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it.
10.14 Surviving Provisions. Section 3 “Fees and Payment,” “Section 4 “Proprietary Rights and Licenses,” Section 5 “Confidentiality,” Section 6.4 “Data Disclaimer,” Section 6.5 “Disclaimers,” Section 7 “Indemnification,” Section 8 “Limitation of Liability,” Section 9.5 “Client Data Portability and Deletion,” and Section 10 “General Provisions” will survive any termination or expiration of this Agreement.
10.16 Privacy and Security. To the extent that We process any personally identifiable information contained in Your Client Data, on Your behalf, or in the provision of the Services, the terms at https://www.fytt.io/privacy, which are hereby incorporated by reference, shall apply and the Parties agree to comply with such terms.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this License Agreement and includes any Order Forms.
“Client Data” means electronic data and information submitted by or for You to the Services, including workout history, goals, key performance indicators, personal physical attributes, and other data uploaded to or processed by the Services.
“Confidential Information” means all information whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (such as Your Client Data and every type of information related to the Services). Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party. Aggregate and anonymous data derived from Client Data is not Confidential Information.
“Disclosing Party” means the Party that is disclosing Confidential Information to the Receiving Party.
“Documentation” means with respect to the Services, the usage guides, policies and other documentation provided to You via Our website, any documentation or any release notes, as updated from time to time.
“Effective Date” means the date You first accepted this Agreement. For clarity, acceptance shall be deemed to occur on the earlier of (a) the date you delivered an executed counterpart of a signature page to this Agreement or any Order Form that references this Agreement, (b) the date you made an online action, such as clicking a button or ticking a box, indicating Your acceptance, or (c) the date you first commenced using the Services.
“Fee(s)” means the amounts invoiced or agreed to be charged to You by Us for the Services as described on Our website, in an Order Form, or in any other documentation.
“Free Trial Services” means those Services which are offered to You on a free of charge basis and for a limited period of time.
“Free Services” means those Services which are offered to You on a free of charge basis.
“Order Form” means an ordering document or online order form that specifies the Services to be provided hereunder that is entered into and accepted between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto.
“Party” means either You or Us, as the context may require, and “Parties” means both You and Us, collectively.
“Purchased Services” means those Services which are offered to You on a paid basis.
“Receiving Party” means the Party that is receiving Confidential Information from the Disclosing Party.
“Service(s)” means the products and services that are provided by Us to You and are used or ordered by You. Services exclude products and services offered to You by a third party.
“User(s)” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use the Service, for whom You have purchased a subscription (or in the case of Free Services or Free Trial Services, for whom such Service has been provisioned), and in cases where the Service requires user authentication, to whom You have supplied a user identification and password.
“Taxes” means taxes or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
“Term” means the time period of this Agreement as set forth in Sections 9.1 and 9.2.
“Third-Party Applications” means those products and services made available by a third party and which may interoperate with the Services.
“We”, “Us”, “Our” or “FYTT” means FYTT, Inc. and its Affiliates.
“You” or “Your” means, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which You are accepting this Agreement, and any Affiliates of that company or entity which have entered into Order Forms. In the case of an individual accepting this Agreement on his or her own behalf, such individual.