End User License Agreement
Last Updated: November 1, 2017
Please read this document carefully before using or accessing any website associated with Fitscript LLC (“Fitscript”, “we” or “us”) including Glucosezone.com, Fitscript.com, the Glucosezone YouTube channel, our Facebook, Instagram, YouTube or Twitter pages, or any related mobile applications or desktop applications (each a “Fitscript Site” and collectively the “Fitscript Sites”) or using any of the services or products offered by Fitscript including our Glucosezone program, live broadcast exercise classes, streaming exercise classes, Diabetes Talk webinars, your interactions with our Digital Coaches, any glucose meters or test strips provided by or made available through Fitscript, or any other services or products we may offer (each a “Fitscript Service” and collectively the “Fitscript Services”).
HEALTH WARNING AND LIABILITY DISCLAIMER:
Fitscript’s Glucosezone program is a dynamic exercise program that utilizes a user’s real-time biometrics to make exercise recommendations to help that user meet the exercise requirements to manage his or her diabetes and lower his or her A1C levels. Use of the Fitscript Services may potentially have a significant impact on your health. IT IS CRITICAL THAT YOU CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE USING THE FITSCRIPT SERVICES, OR ANY EXERCISE PROGRAM, TO MAKE SURE IT IF SAFE FOR YOU TO EXERCISE.
IT IS CRITICAL THAT YOU CONTINUE TO CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER FREQUENTLY AS YOU CONTINUE TO USE THE FITSCRIPT SERVICES TO MAKE SURE IT IS STILL SAFE FOR YOU TO EXERCISE AND FOR YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER TO BE ABLE TO MAKE RECOMMENDATIONS ABOUT YOUR MEDICATIONS AND DOSAGES. YOU SHOULD ALSO CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE YOU STOP USING THE FITSCRIPT SERVICES TO DETERMINE WHETHER AN ADJUSTMENT TO YOUR MEDICATION IS NECESSARY. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING.
FITSCRIPT IS NOT A HEALTH CARE PRACTITIONER, HEALTH CARE PROVIDER, HEALTH CARE CLEARINGHOUSE OR HEALTH PLAN. NOTHING STATED OR POSTED ON ANY FITSCRIPT SITE OR MADE AVAILABLE THROUGH ANY FITSCRIPT SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING ADVICE OR CARE.
YOUR USE OF THE FITSCRIPT SERVICES IS AT YOUR OWN RISK. PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER IN SECTION 2 BELOW BEFORE COMMENCING YOUR USE OF ANY FITSCRIPT SERVICE. FITSCRIPT SHALL NOT BE LIABLE FOR ANY LIABILITY, OF ANY KIND, RESULTING FROM YOUR USE OF THE FITSCRIPT SERVICES.
Fitscript reserves the right, in its sole discretion, to update or modify this Agreement at any time and from time to time without prior notice. Any such modifications and updates will become effective immediately upon posting. You should review these Terms whenever you access or use the Fitscript Sites or the Fitscript Services to keep yourself apprised of any changes. YOUR CONTINUED USE OF ANY FITSCRIPT SERVICE OR YOUR CONTINUED ACCESS OF ANY FITSCRIPT SITE FOLLOWING THE POSTING OF ANY MODIFICATION OR UPDATE WILL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AS MODIFIED OR UPDATED.
ARBITRATION NOTICE: PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE (SEE SECTION 16 BELOW). EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND FITSCRIPT AGREE THAT ALL DISPUTES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION. BY USING THE FITSCRIPT SERVICES YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- Age Requirement
You affirm that you are at least 18 years old and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Agreement, and to abide by and comply with the Agreement. The Fitscript Services are not intended for individuals who are under the age of 18.
IF YOU ARE UNDER THE AGE OF 18, YOU MAY NOT USE ANY PART OF THE FITSCRIPT SERVICES.
- Professional Advice and Medical Disclaimer
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE USING ANY FITSCRIPT SERVICE TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, OR HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY. DO NOT USE THE FITSCRIPT SERVICES IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.
IT IS CRITICAL THAT YOU CONTINUE TO CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER FREQUENTLY AS YOU CONTINUE TO USE THE FITSCRIPT SERVICES TO MAKE SURE IT IS STILL SAFE FOR YOU TO EXERCISE AND FOR YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER TO BE ABLE TO MAKE RECOMMENDATIONS ABOUT YOUR MEDICATIONS AND DOSAGES. YOU SHOULD ALSO CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE YOU STOP USING THE FITSCRIPT SERVICES.
THE FITSCRIPT SITES AND THE FITSCRIPT SERVICES OFFER HEALTH AND FITNESS INFORMATION AND ARE DESIGNED FOR INFORMATIONAL PURPOSES ONLY. FITSCRIPT IS NOT A HEALTH CARE PRACTITIONER, HEALTH CARE PROVIDER, HEALTH CARE CLEARINGHOUSE OR HEALTH PLAN. NOTHING STATED OR POSTED ON ANY FITSCRIPT SITE OR MADE AVAILABLE THROUGH ANY FITSCRIPT SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING ADVICE OR CARE. USE OF THE FITSCRIPT SERVICES, INCLUDING BUT NOT LIMITED TO ANY COMMUNICATIONS YOU HAVE WITH FITSCRIPT, OUR DIGITAL COACHES OR OTHER USERS DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP AND ANY INFORMATION YOU PROVIDE TO FITSCRIPT IS NOT PROTECTED BY A PHYSICIAN-PATIENT PRIVILEGE OR DOCTOR PATIENT CONFIDENTIALITY. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE FITSCRIPT SITES OR MADE AVAILABLE THROUGH THE FITSCRIPT SERVICES AS A SUBSTITUTE FOR, NOR DOES ANY SUCH INFORMATION REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. THE USE OF ANY INFORMATION PROVIDED ON THE FITSCRIPT SITES, AND THE USE OF THE FITSCRIPT SERVICES, IS SOLELY AT YOUR OWN RISK.
IF YOU ARE IN THE UNITED STATES AND THINK YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.
EACH OF THE FITSCRIPT SITES IS CONTINUALLY UNDER DEVELOPMENT AND FITSCRIPT MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE CONTAINED ON A FITSCRIPT SITE AND NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON SUCH SITE WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
- Your Representations and Warranties
When you use the Fitscript Services, you affirm that either:
(A) Your physician has specifically and expressly approved your use of the Fitscript Services; or
(B) All of the following statements are true:
- No physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician;
- You have never felt chest pain when engaging in physical activity;
- You have not experienced chest pain when not engaged in physical activity at any time within the past 12 months;
- You have never lost your balance because of dizziness and you have never lost consciousness;
- You do not have a bone or joint problem that could be made worse by a change in your physical activity;
- Your physician is not currently prescribing drugs for your blood pressure or heart condition;
- You do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems;
- You are not pregnant; and
- You do not know of any other reason you should not exercise.
By using the Fitscript Services you confirm and acknowledge that:
- The reaction of bodily functions, including but not limited to, the heart, lungs, blood vessel system, endocrine system and other organs and systems, to exercise cannot always be predicted with accuracy;
- There is a risk of certain abnormal changes occurring during or following exercise which may include, but are not limited to, hyperglycemia, hypoglycemia, ketoacidosis, and abnormalities of blood pressure, blood glucose levels or heart attacks;
- Use of weight lifting equipment and engaging in exercise may lead to musculoskeletal strains, pain and injury;
- If you are taking medications for diabetes (especially insulin or medications that may increase the production of or sensitivity to insulin), and/or medications intended to treat other medical conditions, the combination of exercise with the use or presence of these medications may produce potentially severe adverse reactions which may include, but are not limited to, hyperglycemia, hypoglycemia, ketoacidosis, and abnormalities of blood pressure, blood glucose levels or heart attack;
- You have consulted with competent medical professionals to determine whether exercise of various kinds is appropriate for you, and obtained clearance to use the Fitscript Services;
- Any modifications to the medications that you are taking will only be undertaken at the express direction and ongoing monitoring of competent medical professionals who are fully apprised of your complete medical condition; and
- No representations or warranties have been made to you regarding the results you will achieve from the use of the Fitscript Services, and you understand that results are individual and may vary.
- General Disclaimers
Fitscript provides the Fitscript Services on an “as is” and “as available” basis. You therefore use the Fitscript Services at your own risk. Fitscript expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law.
Without limiting the foregoing, Fitscript makes no representations or warranties: (i) that the Fitscript Services are suitable for you; (ii) regarding the adequacy or safety of the Fitscript Services for any particular user; (iii) that the Fitscript Services will meet your personal needs; (iv) that the Fitscript Services are or will be permitted in your jurisdiction; (v) that the Fitscript Services will be uninterrupted or error-free; (vi) concerning any content submitted by any user; (vii) concerning any third party’s use of content that you submit; (viii) that Fitscript will continue to support any particular feature of the Fitscript Services; (ix) concerning sites and resources outside of the Fitscript Sites or the Fitscript Services; or (x) concerning the accuracy of any glucose meter, test strip or other product provided by or made available through Fitscript.
Fitscript reserves the right to modify the Fitscript Sites and the Fitscript Services at any time and from time to time without notice. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Fitscript Sites and the Fitscript Services. Fitscript has no obligation to screen or monitor any content and does not guarantee that any content made available on the Fitscript Sites or the Fitscript Services complies with this Agreement or is suitable for all users. Fitscript shall not be responsible for any loss or corruption of data, and hereby waives all claims with respect to damage to your computer system, internet access, download or display device, including, without limitation, any loss or corruption that results from unauthorized access to your device by a third party (i.e. “hacking”).
To the extent that a secondary party may have access to may be able to or view Fitscript-related content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in this Agreement.
To the extent any disclaimer or limitation of liability in this Agreement does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used a Fitscript Service, and no warranties shall apply after such period.
- Limitation of Liability
To the fullest extent permitted by law: (i) in no event shall Fitscript, or any of its affiliates, managers, members, directors, officers, owners, employees, agents or representatives, be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for personal injury, death, loss of livelihood, loss of enjoyment, pain and suffering, emotional distress, loss of profits, loss of future earnings, goodwill, use, and/or any other damages or other intangible losses; and (ii) the total liability of Fitscript and its affiliates, managers, members, directors, officers, owners, employees, agents and representatives to you shall not exceed the amounts paid by you to Fitscript over the twelve (12) months preceding your claim(s).
IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO USE THE FITSCRIPT SERVICES OR OBTAIN OR ACCESS ANY MATERIAL THROUGH THE FITSCRIPT SITES.
Fitscript Coaching Service
When you use the Fitscript Services, you may interact with our Glucosezone-trained coaches (“Digital Coaches”) who advise you in real time about how to address issues relating to exercise and diabetes management. In the course of providing coaching advice, our Digital Coaches may occasionally answer incidental nutritional questions based on their own personal experience.
FITSCRIPT DOES NOT REPRESENT IN ANY WAY THAT ANY NUTRITIONAL OR FITNESS ADVICE PROVIDED BY A DIGITAL COACH CONSTITUTES QUALIFIED EXPERT ADVICE.
Fitscript takes care to instruct its Digital Coaches never, under any circumstance, to provide advice that could be construed as expert advice, and we in no way encourage or endorse such behavior from our Digital Coaches. If you encounter a Digital Coach who is providing expert advice in violation of these principles, please contact us immediately at email@example.com. You should always seek expert professional advice in nutritional and health matters, and should not rely on any opinions expressed through any Fitscript Site or Fitscript Service as expert opinions or advice.
- Your Account
To fully use the Fitscript Services you should create a Fitscript account. You can do this through Glucosezone.com or through the app store available through your mobile device. When you login for the first time you will be asked to provide certain personal and biometric information about yourself, including your name, age, gender, type of diabetes (i.e. Type 1 or Type 2), height, current weight, current A1C level, a list of the medications you are currently taking, any other health conditions or physical challenges you have, your exercise preferences and your geographic location. You will also be asked to create a password and provide us with your valid email address and valid credit card information. When you use the Fitscript Services you will be asked to enter your current blood glucose levels. All of the information you provide to us is voluntary. However, providing true and complete information when you set up your account and use the Fitscript Services will better allow us to make recommendations about which exercises may be right for you, and will better allow you to track your progress over time and to see which exercises correlate to your getting better results.
You are solely responsible for all the information and activity that goes into and occurs under your account, including any activity by any unauthorized user. You must not allow others to use your account. You should safeguard the confidentiality of your password. If you are using a computer that others have access to, you should log out of your account after accessing the Fitscript Sites or using the Fitscript Service. If you become aware of any unauthorized access to your account, you should change your password and notify us immediately at firstname.lastname@example.org.
Use of the Fitscript Sites and Fitscript Services is for personal use only. Users may not use any Fitscript Site or Fitscript Service in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services; or (ii) for other commercial purposes. Users may not use any information obtained from any Fitscript Site or Fitscript Service to contact, advertise to, solicit, or sell to any other user and product or service without his or her prior explicit consent. Organizations, companies, and/or businesses may not use any Fitscript Site or Fitscript Service for any purpose unless expressly authorized by Fitscript. If you wish to inquire about possible commercial use, please contact us at email@example.com. Fitscript may investigate and take any available legal action in response to illegal and/or unauthorized uses of any Fitscript Site or Fitscript Service.
Trial and Promotional Offers
From time to time, in our sole discretion, we may offer trial subscriptions or promotional offers to new users. The period of the trial or promotional offer will begin immediately upon completion of the registration process. Fitscript will begin billing your account in accordance with our normal billing practices (as set forth below) unless you cancel your account. If you cancel your account during the term of the trial or promotional offer, you will not be charged for additional periods, and your service will end. Any unused portion of a period, if offered, will be forfeited when the user purchases a subscription to that publication, where applicable.
Fitscript’s Glucosezone program is a paid, auto-renewing monthly subscription service. When you purchase the Glucosezone program through the Apple Store, your iTunes Account will be charged $12.99 at confirmation of purchase. Your monthly subscription will automatically renew each month and you will be charged an additional $12.99 within 24-hours prior to the end of the current period, unless auto-renew is turned off at least 24-hours before the end of the current period. You may turn off auto-renew by going to your Account Settings after you purchase the Glucosezone program.
When you register to use the Fitscript Services through the Glucosezone.com website, you must provide Fitscript with complete and accurate credit card information. Fitscript will then bill your credit card about once every 30 days in accordance with its applicable billing rates, which are subject to adjustment from time to time in Fitscript’s sole discretion, and which may include any applicable sales taxes, excise taxes and any other applicable taxes. By registering to use the Fitscript Services you are expressly authorizing Fitscript (or its designated payment processor) to automatically charge your account and you are agreeing to pay the charges made to your account in connection therewith. Fitscript will continue to bill your account about once every 30 days until you cancel your account regardless of your use or frequency of use of the Fitscript Services. EVEN IF YOU DO NOT USE THE FITSCRIPT SERVICES OR ACCESS THE FITSCRIPT SITES, YOU ARE RESPONSIBLE FOR THE PAYMENT OF ALL CHARGES TO YOUR ACCOUNT.
If you provide a payment method and our charge results in an overdraft, chargeback or other fee from your bank, you alone are responsible for that fee. In the event that Fitscript decides to increase or decrease its billing rates, we will send a notification to the email address you provided to us when you registered to use the Fitscript Services.
You may cancel your account at any time, but please note that cancellations take effect starting at the end of your current billing period so you will not receive any partial month refund or credit if you cancel your account before the end of the current billing period.
Fitscript may change, modify, add, remove, suspend, cancel or discontinue any aspect of the Fitscript Services including the functionality, content, and/or availability of any features at any time in its sole discretion.
At this time Fitscript does not offer “paused subscriptions” and does not otherwise allow users to temporarily suspend their accounts. If you wish to discontinue your use of the Fitscript Services then you must cancel your account.
- Account Cancellation or Deletion
If you registered your account through the Glucosezone.com website, you may cancel your account at any time by contacting us or clicking the “unsubscribe” button on your account. If you registered by downloading an application from the app store available through your mobile device, then you also have to go through the account cancellation and unsubscription process required by the app store through your mobile device. Fitscript reserves the right to continue to contact you after you have cancelled your account, to attempt to re-engage you to use the Fitscript Services.
Fitscript reserves the right to suspend, disable or delete your account (or any part thereof) at any time, or block or remove any content you submitted, if Fitscript determines, in its sole discretion, that you have violated any provision of this Agreement or that your conduct or content would tend to damage Fitscript’s reputation or goodwill. If Fitscript deletes your account for the foregoing reasons, you may not re-register for any Fitscript Service. Fitscript may block your email address and Internet protocol address to prevent further registration. Fitscript is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.
After your account is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
Fitscript reserves the right to retain and to use your account information after you cancel your account or after Fitscript suspends, disables or deletes your account. You may not retain any of your account information after you cancel your account or after Fitscript suspends, disables or deletes your account.
- User Content
When you access the Fitscript Sites or use the Fitscript Services, you may be able to publish, transmit or post content that may be visible to other users. You agree that you are solely responsible for the content you publish, transmit or post when you access the Fitscript Sites and use the Fitscript Services and Fitscript will not have any liability for such content. When you publish, transmit or post content, you are affirming, representing and warranting that: (a) you own or have the necessary licenses, rights, consents, and permissions to use, and authorize Fitscript to use, each and every image and sound contained in the content and to enable inclusion and use of such content in the manner contemplated by the Fitscript Sites or Fitscript Services; and (b) the publishing, transmitting or posting of the content on or through the Fitscript Sites or Fitscript Services or otherwise does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity.
You agree that you will not publish, transmit or post falsehoods or misrepresentations that could damage Fitscript or any third party, or any content that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable, or that otherwise constitutes “cyber bullying”. Fitscript does not endorse any user content or any opinion, recommendation or advice expressed therein, and Fitscript expressly disclaims any and all responsibility or liability in connection with such user content.
Fitscript reserves the right to decide whether any user content is inappropriate or violates the Terms, including but not limited to: copyright infringement, violations of intellectual property law, pornography, obscene or defamatory material, or excessive length or storage size. Fitscript also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages), or to restrict, suspend or terminate your access to all or any part of the Fitscript Sites or the Fitscript Services at any time, for any or no reason, with or without prior notice. Notwithstanding the foregoing, Fitscript assumes no responsibility for monitoring the Fitscript Sites or the Fitscript Services for inappropriate content, or modifying or removing such content from the Fitscript Sites or the Fitscript Services.
As between you and Fitscript, you own all content that you submit to the Fitscript Sites and the Fitscript Services, whether directly or indirectly (for example, via Facebook, Twitter, Instagram or YouTube). However, it is important that you understand that by posting a submission to the Fitscript Sites or the Fitscript Services, you are granting Fitscript and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers) royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content (including without limitation, your name and likeness, photographs, testimonials and biometrics) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or “performance rights” in your content.
You further grant all users of the Fitscript Sites and the Fitscript Services permission to view your content for their personal, non-commercial purposes. If you make suggestions to Fitscript on improving or adding new features to the Fitscript Sites or the Fitscript Services, Fitscript shall have the right to use your suggestions without any compensation to you.
For each piece of content that you submit, you represent and warrant that: (i) you have the right to submit the content to Fitscript and grant the licenses set forth above; (ii) Fitscript will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the content complies with this Agreement and all applicable laws.
- Prohibited Actions
You agree to use the Fitscript Sites and the Fitscript Services in a manner consistent with all applicable laws, rules and regulations. Fitscript reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates our Terms, including removing the offending communication from the Fitscript Sites and the Fitscript Services and terminating or suspending the account of such violator.
In connection with your access and use of the Fitscript Sites and the Fitscript Services, you agree not to: (a) act in a deceptive manner by, among other things, impersonating any person; (b) harass or stalk any other person; (c) harm or exploit minors; (d) distribute “spam”; (e) promote information that is false or misleading, or promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable; (e) “frame” or “mirror” any part of the Fitscript Sites or the Fitscript Services; (f) use meta tags or code or other devices containing any reference to Fitscript, the Fitscript Sites or the Fitscript Services (or any trademark, trade name, service mark, logo or slogan of Fitscript) to direct any person to any other website for any purpose; (g) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Fitscript Sites or the Fitscript Services or any software used on or for the Fitscript Sites or the Fitscript Services, or cause others to do so; (h) post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Fitscript Sites or the Fitscript Services other than solely in connection with your use of the Fitscript Sites and Fitscript Services in accordance with this Agreement; (i) collect information about others; (j) advertise or solicit others to purchase any product or service within the Fitscript Sites or the Fitscript Services; (k) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; (l) publicize or promote commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes; or (m) participate in any activity that in any way violates any law.
Fitscript has the right, but not the obligation, to monitor all conduct on and content submitted to the Fitscript Sites and the Fitscript Services. Fitscript reserves the right to alter, edit, remove, or refuse to post any content, in whole or in part in its sole discretion and/or to satisfy or comply with applicable laws, regulations and/or legal processes.
You agree that Fitscript may access, preserve and disclose your account information and content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Fitscript Sites and the Fitscript Services in the future; or (v) protect the rights, property or personal safety of Fitscript or any other person.
You are solely responsible for all of your activity in connection with the Fitscript Sites and the Fitscript Services. You agree to indemnify, defend, and hold harmless Fitscript and its affiliates, managers, members, directors, officers, owners, employees, agents and representatives, from and against any liability, claims, damages, losses and costs (including reasonable attorneys’ fees) that: (i) arise from your activities on the Fitscript Sites and the Fitscript Services; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to Fitscript violates any law or infringes any personal right or third party right, including any intellectual property or privacy right. Fitscript reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fitscript in connection therewith.
- Grant of Limited License
When you use the Fitscript Sites and the Fitscript Services, Fitscript is granting you a limited, non-exclusive, non-assignable and non-transferrable license to access and make personal use of the Fitscript Sites and the Fitscript Services. This license is personal and does not include any resale or commercial use of the Fitscript Sites or the Fitscript Services. Fitscript owns all of the right, title and ownership in and to the Fitscript Sites or the Fitscript Services, and any copies or portions thereof. You agree not to download or modify the Fitscript Sites and the Fitscript Services, or any portion of the Fitscript Sites or the Fitscript Services, without the express prior written consent of Fitscript. Any unauthorized use by you shall immediately terminate the license granted to you by Fitscript.
- Third Party Links and Content
Certain links on the Fitscript Sites and/or the Fitscript Services may let you leave the particular Fitscript Site or Fitscript Service you are accessing in order to access a linked site (the “Linked Sites”). When you are linking to a third party site, it is important to know that Fitscript does not control these sites, nor has Fitscript reviewed or approved the content which appears on the Linked Sites. Fitscript is not responsible for the legality, accuracy or nature of any content, advertising, products or other materials on or available from any linked sites, or the conduct of such Linked Sites. You acknowledge and agree that Fitscript 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 the use of any of the links, content, goods or services available on or through the Linked Sites.
More specifically, your participation, correspondence or business dealings with any third party found on or through the Fitscript Sites or the Fitscript Services regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Fitscript shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
- Intellectual Property
You acknowledge that the Fitscript Sites and the Fitscript Services contain software, graphics, photos, videos, know-how, product ideas, comments and other material (collectively, “Content”) that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Fitscript-generated Content and Content developed for Fitscript by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, Fitscript owns a copyright in the selection, coordination, arrangement and enhancement of all Content in the Fitscript Sites and the Fitscript Services. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Fitscript Sites and the Fitscript Services, you may download one copy of the application (but never the Content) to any single computer or mobile device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these Terms. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.
The Fitscript name, logos and affiliated applications and technologies are the exclusive property of Fitscript. All other trademarks appearing on the Fitscript Sites and the Fitscript Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Fitscript Sites or the Fitscript Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Fitscript Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Fitscript owns and retains all proprietary rights in the Fitscript Sites and Fitscript Services, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Fitscript Sites or through the Fitscript Services, without first obtaining the prior written consent of Fitscript or, if such property is not owned by Fitscript, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
- Copyright / DMCA Policy
Fitscript respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the materials they upload to the Fitscript Sites do not infringe any third party copyright.
Fitscript will promptly remove materials from the Fitscript Site in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright. In addition, Fitscript may, in appropriate circumstances, terminate the accounts of repeat copyright infringers.
Filing a DMCA Notice to Remove Copyrighted Content-for Copyright Holders
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information: (a) your name, address, telephone number, and email address; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where on the Fitscript Site the material that you claim is infringing may be found, sufficient for Fitscript to locate the material (e.g., the URL); (d) a statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law; (e) a statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (f) your electronic or physical signature.
You may submit this information to:
5 Science Park
New Haven, Connecticut 06511
Filing a DMCA Counter-notification to Restore Removed Content for Fitscript Users
If you believe that your material has been removed by mistake or misidentification, please provide Fitscript with a written counter-notification containing the following information: (a) your name, address, telephone number and email address; (b) a description of the material that was removed and the location on the Fitscript Site (e.g., the URL) where it previously appeared; (c) a statement UNDER PENALTY OF PERJURY that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; (d) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located and any judicial district in which Fitscript may be found (which includes the United States District Court for the District of Connecticut), and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person; and (e) your electronic or physical signature.
You may submit this information to:
5 Science Park
New Haven, Connecticut 06511
Please note that we will send any complete counter-notifications we receive to the person who submitted the original DMCA notice. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the removed materials. Until that time, your materials will remain removed.
In filing a DMCA notice or counter-notification, please make sure that you have complied with all of the above requirements. If we request additional information necessary to make your DMCA notice or counter-notification complete, please provide that information promptly. If you fail to comply with all of these requirements, your DMCA notice or counter-notification may not be processed further. In addition, please make sure that all of the information you provide is accurate. UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MATERIALLY MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION MAY BE SUBJECT TO LIABILITY.
Fitscript may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Fitscript Sites or the Fitscript Services shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Fitscript in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against Fitscript or its affiliates any class action, class arbitration, or other representative action or proceeding.
By using the Fitscript Sites or the Fitscript Services in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Fitscript or its affiliates (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Fitscript (except for small-claims court actions) may be commenced only in the federal or state courts located in New Haven County, Connecticut. You hereby irrevocably consent to the jurisdiction of those courts for such purposes and you irrevocably waive any right to a trial by jury.
- Governing Law
This Agreement, and any dispute between you and Fitscript, shall be governed by the laws of the state of Connecticut without regard to principles of conflicts of law, provided that any arbitration under Section 16 of this Agreement shall be governed by the Federal Arbitration Act.
- Interpretation; Severability; Waiver; Remedies
Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by Fitscript in exercising any right hereunder will waive any further exercise of that right. Fitscript’s rights and remedies hereunder are cumulative and not exclusive.
- Successors; Assignment; No Third Party Beneficiary
This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You may not assign this Agreement without Fitscript’s prior written consent. No third party shall have any rights hereunder.
- Contact Us
If you have any questions, comments or concerns about the End User License Agreement, please contact us at:
5 Science Park
New Haven, Connecticut 06511