END-USER LICENSE AGREEMENT
FITPEAK END-USER SOFTWARE AGREEMENT FOR APPLICATIONS
This End-User License Agreement (Agreement) is between You and Fitzter Oy (FitPeak). The Agreement authorizes You to use the Software specified in Clause 1 below under the terms and conditions set forth below. This is an agreement on end-user rights and not an agreement for sale. FitPeak continues to own the copy of the Software and any other copy that You are authorized to make pursuant to this Agreement.
Read this Agreement carefully before installing, downloading, or using the Software. By clicking on the ”I Accept” button while installing, downloading, and/or using the Software, You agree to the terms and conditions of this Agreement. If You do not agree to all of the terms and conditions of this Agreement, promptly click the ”Decline” or ”I Do Not Accept” button, cancel the installation or downloading, or destroy or return the Software and accompanying documentation to FitPeak. YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. SOFTWARE As used in this Agreement, the term Software means, collectively: (i) the software application which is compatible with certain mobile devices, computers, web browsers or other terminals (collectively Device) (ii) all the contents with which this Agreement is provided (and content which is provided under this Agreement), including the object code form of the software delivered through downloading the Software or any other mean (e.g. electronic mail, or other Web page) (iii) digital images, stock photographs, clip art, or other artistic works (Stock Files) (iv) related explanatory written materials and any other possible documentation related thereto (Documentation); (v) fonts, and (vi) upgrades, modified versions, updates, additions, and copies of the Software (collectively Updates) (vii) any training, nutrition or other programs and other content, if any, licensed to You by FitPeak under this Agreement.
2. END-USER RIGHTS AND USE FitPeak grants to You non-exclusive, personal, non-transferable end-user rights to install the Software on your personal Devices and use the Software on Your personal Device. The license is revocable in accordance with the terms of this Agreement.
3. LIMITATIONS ON END-USER RIGHTS You may not copy, distribute, or make derivative works of the Software, in whole or in parts, except as follows:
i) You may not use, modify, translate, reproduce, or transfer the right to use the Software or copy the Software except as expressly provided in this Agreement.
ii) This license does not allow You to use the Software on any Device that You do not own or control, and you may not distribute or make the Software available for anyone else over any network or transfer protocol to enable the use of the Software in multiple devices.
iii) You may make a single copy of the Software on magnetic media as an archival backup copy, provided Your archival backup copy is not installed or used on any other Device. You may replicate the software to Your other personal devices through cloud services and save Your software instance in cloud services designed for this software (ios, Android). Any other copies You make of the Software are in violation of this Agreement.
iv) You may not resell, sublicense, rent, lease, or lend the Software or host online service using the Software.
v) You may not reverse engineer, reverse compile, disassemble, or otherwise attempt to discover the source code of the Software (except to the extent that this restriction is expressly prohibited by law) or create derivative works based on the Software.
vi) Unless stated otherwise in the Documentation, You shall not display, modify, reproduce, or distribute any of the Stock Files included with the Software or distribute audio output of the Software. In the event that the Documentation allows You to display the Stock Files, You shall not distribute the Stock Files on a stand-alone basis, i.e., in circumstances in which the Stock Files constitute the primary value of the product being distributed. You should review the ”Readme” files associated with the Stock Files that You use to ascertain what rights You have with respect to such materials. Stock Files may not be used in the production of libelous, defamatory, fraudulent, infringing, lewd, obscene, or pornographic material or in any otherwise illegal manner. You may not register or claim any rights in the Stock Files or derivative works thereof.
vii) You agree that You shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which You use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
viii) You may not use the Software or other FitPeak products or services for life critical or medical purposes.
ix) In case that you suffer or suspect suffering from a cardiac condition (e.g. coronary disease) or other medical condition which may affect your physical performance, if you have abnormal feelings during physical performance or if You use a pacemaker or other electronic medical device, you should consult a medical doctor before physical exercise and before using the Software or other FitPeak products or services.
4. COPYRIGHT The Software and all rights, without limitation including proprietary rights therein, are owned by FitPeak and/or its licensors and affiliates and are protected by international treaty provisions and all other applicable national laws of the country in which it is being used. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of FitPeak and/or its licensors and affiliates. You must not copy the Software, except as set forth in clause 3 (Limitations on End-User Rights). Any copies which You are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on the Software.
5. UPDATES FitPeak may, upon its sole discretion, issue Updates of the Software, which will be made available to You as determined by FitPeak from time to time. The delivery of any Upgrade may be subject to a separate purchase. You must possess valid end-user rights to a previous version of the Software in order to use the Update, and You may use the previous version for ninety (90) days after You receive the Update in order to assist You in the transition to the Update. After such time You no longer have a right to use the previous version, except for the sole purpose of enabling You to install the Update.
6. USE OF DATA You agree that FitPeak may collect and use technical and usage data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate provision of software updates, product support and other services to You related to the Software. FitPeak may use this information to improve its products and services as well as to provide services and technologies to You. Moreover such data and related information may be used in order to teach artificial intelligence and algorithms, modify content and programs for individual users, suggest training and nutrition programs in the same manner as a traditional personal trainer would.
8. COMMENCEMENT & TERMINATION This Agreement is effective from the moment when You install the Software. You may terminate this Agreement at any time by permanently deleting, destroying, and returning, at Your own costs, the Software, all backup copies, all audio output generated by the Software, and all related materials provided by FitPeak. Your end-user rights automatically and immediately terminate without notice from FitPeak if You fail to comply with any provision of this Agreement. In such an event, You must immediately delete, destroy, or return at Your own cost, the Software, all backup copies, all audio output generated by the Software, and all related material to FitPeak.
9. DISCLAIMER The features of the FitPeak services that promote physical activity, nutrition or general wellness are for your informational purposes only and are not intended as medical advice or services, or for diagnostic or treatment purposes. Before engaging in any physical activity or making any changes to your diet or lifestyle, we suggest seeking advice from your relevant health care professional. Never disregard any advice from a health care professional because of something that you have read on Fitpeak services.
10. NO WARRANTY YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED ”AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER FITPEAK, ITS LICENSORS OR AFFILIATES, NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER RIGHTS. THERE IS NO WARRANTY BY FITPEAK OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.
11. NO OTHER OBLIGATIONS This Agreement creates no obligations on the part of FitPeak other than as specifically set forth herein.
12. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FITPEAK, ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF FITPEAK OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES/STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, FITPEAK, ITS EMPLOYEES OR LICENSORS OR AFFILIATES’ LIABILITY SHALL BE LIMITED TO U.S. $50. Nothing contained in this Agreement shall prejudice the statutory rights of any party dealing as a consumer. FitPeak is acting on behalf of its employees and licensors or affiliates for the purpose of disclaiming, excluding, and/or restricting obligations, warranties, and liability as provided in this clause 12, but in no other respects and for no other purpose.
13. TECHNICAL SUPPORT FitPeak has no obligation to furnish You with technical support.
14. EXPORT CONTROL The Software, including technical data, may include software subject to export controls under the U.S. Export Administration Regulations (”EAR”) and may be subject to import or export controls in other countries. In particular, but without limitation, the Software may not be exported or re-exported into any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. department of Commerce Denied Person’s List or Entity List. The EAR prohibits the use of the Software and technical data by a Government End User, as defined hereafter, without a license from the U.S. government. A Government End User is defined in Part 772 of the EAR as ”any foreign central, regional, or local government department, agency, or other entity performing governmental functions; including governmental research institutions, governmental corporations, or their separate business units (as defined in part 772 of the EAR) which are engaged in the manufacture or distribution of items or services controlled on the Wassenaar Munitions List, and international governmental organizations. This term does not include: utilities (telecommunications companies and Internet service providers; banks and financial institutions; transportation; broadcast or entertainment; educational organizations; civil health and medical organizations; retail or wholesale firms; and manufacturing or industrial entities not engaged in the manufacture or distribution of items or services controlled on the Wassenaar Munitions List.)” You agree to strictly comply with all applicable import and export regulations and acknowledge that You have the responsibility to obtain licenses to export, re-export, transfer, or import the Software. You further represent that You are not a Government End User as defined above, and You will not transfer the Software to any Government End User without a license.
15. INDEMNITY You shall indemnify and hold FitPeak and its parents, subsidiaries, affiliates, officers, directors, employees, licensors, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your unlawful, inappropriate or unethical use of the Software and related services or breach of this Agreement.
16. NOTICES All notices and return of the Software and Documentation should be delivered to: FITZTER OY Rajakuja 3 A 01230 Vantaa FINLAND
17. APPLICABLE LAW & GENERAL PROVISIONS This Agreement and Your use of the Software is governed by the laws of Finland, excluding its conflicts of law rules. Your use of the Software may also be subject to other local, state, national or international laws. All disputes arising from or relating to this Agreement shall be settled by a single arbitrator appointed by the Finland Chamber of Commerce. The arbitration procedure shall take place in Helsinki, Finland in the English language. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in writing by Managing Director of FitPeak. This is the entire agreement between FitPeak and You relating to the Software, and it supersedes any prior representations, discussions, undertakings, end-user agreements, communications, or advertising relating to the Software.