License
Agreement
1. General
1.1
This agreement governs your use of the FitWise.Com
Internet information service (the "Service")
which is operated by Paul Becker. Additional terms and
conditions of use applicable to specific areas of the
Service may also be posted in such areas and, together
with this agreement, govern your use of those areas.
This agreement, together with any such additional term
and conditions, are referred to as this
"Agreement."
1.2
FitWise reserves the right, in its discretion, to change
or modify all or any part of this Agreement at any time,
effective immediately upon notice published on the
Service. Your continued use of the Service constitutes
your binding acceptance of these terms and conditions,
including any changes or modifications made by FitWise as
permitted above. If at any time the terms and conditions
of this Agreement are no longer acceptable to you, you
should immediately cease all use of the Service.
2. Use of
Content
2.1
You acknowledge that the Service contains information,
software, photographs, audio and video clips, graphics,
links and other material (collectively, the
"Content") that are protected by copyright,
trademark or other proprietary rights of FitWise or third
parties. All Content on the Service is copyrighted as a
collective work of FitWise pursuant to applicable
copyright law. You agree to comply with any additional
copyright notices, information, or restrictions
contained in any Content available on or accessed
through the Service. Users of the Service may use the
Content only for their personal, noncommercial use.
2.2
You may not modify, publish, transmit, transfer or sell,
reproduce, create derivative works from, distribute,
perform, display, or in any way exploit any of the
Content, in whole or in part, except as expressly
permitted in this Agreement. Content consisting of
downloadable software may not be reverse engineered
unless specifically authorized by the owner of the
software's patent and/or copyright. You may post on the
Service any Content owned by you (such as your original
statements), Content for which you have received express
permission from the owner and Content in the public
domain. You assume all risk and responsibility for
determining whether any Content is in the public domain.
You grant to FitWise the right to edit, copy, publish,
distribute, translate and otherwise use in any medium
any Content that you place on the Service without
compensation to you. You represent and warrant that you
are authorized to grant all rights set forth in the
preceding sentence.
2.3
You may download or copy the Content only for your own
personal use, provided that you maintain all copyright
and other notices contained in such Content. You shall
not store electronically any significant portion of any
Content. Except as expressly permitted by the copyright
laws, no copying, storage, redistribution or publication
of any Content is permitted without the express
permission of FitWise or the owners of such Content or
their authorized persons, if other than FitWise. You may
download from the Service any Content in the public
domain for your own personal use.
3. Rules of
Conduct. You shall not post on the Service any
Content which (a) is libelous, defamatory, obscene,
pornographic, abusive, harassing or threatening, (b)
contains viruses or other contaminating or destructive
features, (c) violates the rights of others, such as
Content which infringes any copyright, trademark,
patent, trade secret or violates any right of privacy or
publicity, or (d) otherwise violates any applicable law.
You may not post on the Service any links to any
external Internet sites that are obscene or
pornographic. You shall not use the Service for any
commercial purpose, to distribute any advertising or
solicitation of funds or goods and services or to
solicit users to join competitive online services.
4. Managing
Content. FitWise does not and cannot review all the
Content posted by others on the Service and is not
responsible for such Content. However, FitWise reserves
the right to delete, move, or edit any Content including
Content supplied by you or third parties. Any Content
you post to the Service becomes the property of
FitWise. You shall remain solely responsible for
all Content posted by you.
5. No
Endorsement.
5.1
FitWise does not represent or endorse the accuracy or
reliability of any Content and you acknowledge that any
reliance upon such Content shall be at your sole risk.
Any Content placed by users are the views of the user
posting the statement, and do not represent the views of
FitWise.
5.2
The Service may contain links to sites on the Internet
which are owned and operated by third parties (the
"External Sites"). You acknowledge that FitWise
is not responsible for the availability of, or the
content located on or through, any External Site. You
should contact the site administrator or Webmaster for
those External Sites if you have any concerns regarding
such links or the content located on such External
Sites.
6. Indemnity.
You agree to indemnify, defend and hold FitWise and
its affiliates, and their respective officers,
directors, owners, agents, information providers and
licensors (collectively, the "FitWise Parties")
harmless from and against any and all claims, liability,
losses, costs and expenses (including attorneys' fees)
incurred by any FitWise Party in connection with any use
or alleged use of the Service under your password by any
person, whether or not authorized by you. FitWise
reserves the right, at its own expense, to assume the
exclusive defense and control of any matter otherwise
subject to indemnification by you, and in such case, you
agree to cooperate with FitWise's defense of such claim.
7. Termination of
Service. FitWise reserves the right, in its sole
discretion, to restrict, suspend or terminate your
access to all or any part of the Service at any time for
any reason without prior notice or liability. FitWise may
change, suspend or discontinue all or any aspect of the
Service at any time, including the availability of any
feature, database, or Content (including the Interactive
Areas), without prior notice or liability.
8. DISCLAIMER OF
WARRANTIES; LIMITATION OF LIABILITY.
8.1
NEITHER FitWise NOR ANY PROVIDER OF THIRD PARTY CONTENT
OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE SERVICE
WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES FitWise,
ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE
AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE
OBTAINED FROM USE OF THE SERVICE OR THE CONTENT. THE
SERVICE AND THE CONTENT ARE DISTRIBUTED ON AN "AS
IS, AS AVAILABLE" BASIS. NONE OF FitWise, THIRD
PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS MAKE
ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE, ANY
CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE
SERVICE. NEITHER FitWise NOR ANY THIRD PARTY CONTENT
PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR
DOWNLOADING THROUGH THE SERVICE WILL BE FREE OF VIRUSES
OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU
EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY
AND PERFORMANCE OF THE SERVICE AND THE ACCURACY OR
COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.
8.2
NEITHER FitWise, ANY THIRD PARTY CONTENT PROVIDER NOR
THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE USE OF OR INABILITY TO USE THE
SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.3
SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES
OR LIMITATION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR
EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE
LIABILITY OF FitWise, THIRD PARTY CONTENT PROVIDERS AND
THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW.
8.4
The calculations used in FitWise.Com and in the FitWise
Calculator are believed to be accurate. However, no
warranty of accuracy is made and bugs and/or program
malfunctions may cause incorrect results. Be sure to
consult your doctor or exercise professional before
using any of the information contained on FitWise.Com or
within the FitWise Fitness Calculator.
9. Miscellaneous.
This Agreement shall be construed in accordance with
the laws of the State of Utah, and the parties
irrevocably consent to bring any action to enforce this
Agreement in the federal or state courts located in Salt
Lake City, Utah. This Agreement constitutes the entire
agreement between the parties with respect to the
subject matter hereof, and supersedes all previous
written or oral agreements between the parties with
respect to such subject matter. If any inconsistency
exists between the terms of this agreement and any
additional terms and conditions posted on the Service,
such terms shall be interpreted as to eliminate any
inconsistency, if possible, and otherwise, the
additional terms and conditions shall control. Sections
2, 3, 7, 8, 10 and 11 shall survive any termination of
this Agreement as well as any other provisions which by
their terms or sense are intended to survive.
Revised 07/21/99