As used in this Agreement:
*”Application” shall further refer to and consist of the following: (i) the mobile software application accompanying this Agreement, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation and other components; and (ii)any updates, modifications or enhancements to the items listed in subscription (i).
- INFORMATIONAL PURPOSES ONLY; RISK ASSUMPTION
Lumon Fit provides the Application for informational purposes only. THE APPLICATION DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. Lumon Fit is not a medical professional, and Lumon Fit does not provide medical services or render medical advice. The Application is not a substitute for the advice of a medical professional, and the information made available on or through the Application should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, You should consult a medical professional. YOUR USE OF THE APPLICATION DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND LUMON FIT. YOU HEREBY AGREE THAT, BEFORE USING THE APPLICATION, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM EXERCISE OR CHANGES IN YOUR REHABILITATION PROCESS.
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE APPLICATION. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY LUMON FIT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES , SUCCESSORS, AND ASSIGN FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR THE THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE APPLICATION.
- LICENSE AND RESTRICTIONS ON USE
- LICENSE GRANT. LUMON FIT GRANTS YOU A REVOCABLE, NON-EXCLUSIVE, NON-TRANSFERABLE, LIMITED RIGHT TO INSTALL AND USE THE APPLICATION ON UP TO 2 IPADS (“iPad”) OWNED AND CONTROLLED BY YOU, AND ACCESS AND USE THE APPLICATION ON SUCH IPAD STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- Restrictions on Use. THE APPLICATION IS FOR YOUR PERSONAL AND NON-COMMERCIAL USE. You shall use the application strictly in accordance to the terms of this Agreement and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work work from the Application; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Lumon Fit or its affiliates, partners, suppliers or the licensors of the Application; (e)use the Application for any generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) instal, use or permit the Application to exist on more then two iPad’s at a time or on any other mobile device or computer; (g) distribute the Application to more than two iPad’s; (h) make the application available over a network or other environment permitting access or use by more than two iPad’s or multiple users at the same time; (i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, products or software offered by Lumon Fit; (j) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; (k) use any proprietary information or interfaces of Lumon Fit or other intellectual property of Lumon Fit in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application; or (l) the application, or any portion of the application (including, without limitation, rehabilitation/exercise suggestions and guidelines), may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Lumon Productions.
- INTELLECTUAL PROPERTY RIGHTS
- Rights to Application. You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Lumon Productions. Furthermore, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the application are the intellectual property and proprietary and confidential information of Lumon Productions and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this Agreement are hereby reserved and retained by Lumon Productions.
- Third Party Software. The Application may utilize or include third party software that is subject to open source and third party license terms (“Third Party Software”). You acknowledge and agree that Your right to use such Third Party Software as part of the Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of relevant Third Party Software. In no event shall the Application or components thereof be deemed to be “open source” or “publicly available” software.
- LUMON FIT is a registered trademark of Lumon Productions, LLC. Other trademarks, service marks, graphics, logos and domain names appearing on the Application may be the trademarks of third-parties. Neither Your use of the Application nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the LUMON FIT Marks or any Third-Party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the LUMON FIT Marksgenerated as a result of Your use of the Application will inure to the benefit of Lumon Productions, LLC and You agree to assign, and hereby do assign, all such goodwill to Lumon Productions, LLC. You shall not at any time, nor shall You assist others to, challenge Lumon Productions, LLC’s right, title, or interest in or to, or the validity of, the LUMON FIT marks.
- LUMON FIT Copyrights; Copyright Notice. All content and other materials available through the Application, including without limitation any software code, scripts, interfaces, graphics, displays, text, documentation and other components, and the selection, arrangement and organization thereof, are either owned by Lumon Productions, LLC or are the property of LUMON FIT’s licensors and suppliers. Excepts as explicitly provided, neither use of the Application nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2011 to the present, Lumon Productions, LLC. ALL RIGHTS RESERVED.
- RESTRICTION ON TRANSFER
YOU MAY NOT RENT, LEASE, LEND, SUBLICENSE OR TRANSFER THE APPLICATION, THIS AGREEMENT OR ANY OF THE RIGHTS GRANTED HEREUNDER. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THIS PROVISIONS SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT.
- THIRD PARTY CONTENT AND SERVICES.
- General. You acknowledge that the Application may permit, or require, access to or use of products, services (such as application usage and marketing analytics), web-sites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties (“Third Party Content and Services”).
- Disclaimer. You acknowledge that LUMON FIT does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party web-sites available through the Application). Furthermore, Your access to an use of the Third Party Content and Services is at Your risk, and LUMON FIT and its affiliates, partners, suppliers and licensors shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services. LUMON FIT hereby disclaims any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features appropriates, accuracy, completeness, or legality of the Third Party Content and Services.
- Third Party Terms of Service. You acknowledge and agree that Your access and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party located using the Application may be governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. Furthermore, You acknowledge and agree that The Third PartyContent and Services and any related third party terms of service are subject to change by the applicable third party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over Internet and with any third party, and you agree that LUMON FIT and its affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that You are not being granted a license to: (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; (iii) any copyright, trademark or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein.
- Endorsements. You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by LUMON FIT or its affiliates of such Third Party Content and Services. LUMON FIT reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Application, although LUMON FIT has no obligation to restrict or deny access even if requested by You.
- Inappropriate Materials. You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter: (i) that You or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language, and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing , You agree to use the Third Party Content and Services at Your sole risk and that LUMON FIT and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
- TERM AND TERMINATION; SURVIVAL
- Term. This Agreement shall be effective until terminated.
- Termination. LUMON FIT may, in its sole and absolute discretion, at any time and for any reason, suspend or terminate this Agreement and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fails to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by LUMON FIT. Upon the termination of this Agreement, You shall cease all use of the Application and uninstall the Application.
- Survival. The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination: 2, 3, 4(b), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.
- DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK. LUMON FITAND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, LUMON FIT AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT: (i) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED TO MEET YOUR EXPECTATIONS; OR (iv) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LUMON FIT OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT LUMON FIT AND APPLE HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION.
- LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL LUMON FIT OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LUMON FIT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LUMON FIT’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF TWENTY FIVE DOLLARS (25$). YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN LUMON FIT AND YOU. THE APPLICATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You shall indemnify, defend and hold harmless LUMON FIT and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Third Party Content and Services; (ii) Your breach of this Agreement; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.
LUMON FIT does not warrant that the Application will be compatible or interoperable with Your iPad or any other piece of hardware, software, equipment or device installed on or used in connection with your iPad. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of your iPad to diminish or fail completely, and may result in permanent damage to Your iPad, loss of the data located on your iPad, and corruption of the software and files located on Your iPad. You acknowledge and agree that LUMON FIT and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
- GOVERNING LAW; JURISDICTION AND VENUE
The Application and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Miami, FL and shall be governed by and construed in accordance with laws of the State of Florida without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE APPLICATION OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or agains either party.
- Requirement of Arbitration. You agree that any dispute, of any nature whatsoever, between You and LUMON FIT arising out of or relating to the Application or this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Miami, FL (unless You and LUMON FIT mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of Florida and JAMS’ Streamlined Arbitration Rules & Procedures. A Final judgement or award by the arbitrator may then be duty entered and recorded by prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee and reasonable attorney’s fees) to the prevailing party.
- Remedies and Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude You or LUMON FIT from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or LUMON FIT from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN MIAMI, FLORIDA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
- Sever-ability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the application of such provision to persons other than those whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extend permitted by law.
- Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of breach constitute waiver of any subsequent breach.
- Export Control. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (ii) listed on any U.S. Government list of prohibited or restricted parting including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entry List. You also agree that You will not use the Application for any purposes prohibited by united states law.
- Modification or Amendment. LUMON FIT may modify or amend the terms of this Agreement by posting a copy of the modified or amended Agreement on the LUMON FIT website, at: http://www.lumonfit.com or by including a modified or amended Agreement within the Application in the Appendixes section. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended Agreement is posted on the LUMON FIT website on included in the Appendixes section of the Application.
- Third Party Beneficiaries. Except as provided in this section 15(e), nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. You and LUMON FIT acknowledge and agree that Apple and its subsidiaries are third party beneficiaries to this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right to enforce this Agreement against You in its capacity as a third party beneficiary to the Agreement.
- Assignment. LUMON FIT may assign or transfer this Agreement at any time, with or without notice to You. You shall not assign this Agreement or any rights or obligations herein without the prior written consent of LUMON FIT and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
- Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
- Headings. The headings contained in this Agreement are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Agreement or any of its provisions.
- Notices. Please direct any questions, complains or claims related to this Agreement or Your use of the Application to the following:
E-mail to: firstname.lastname@example.org