"Agreement" means the Estimate and these Terms and Conditions.
"Estimate" means the estimated pricing of Services that We have provided or will provide to You electronically.
"Hardware" means the sensors, monitors, receivers and/or other equipment provided by Us to You as detailed in the Estimate.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Services" means the online, Web-based application services that we offer that You hereby agree to purchase under this Agreement.
"User Guide" means the online user and support information for the Services, currently available at http://support/fitmetrix.io/he/en-us, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide.
"Users" means individuals who are authorized by You to use the Services and for whom subscriptions to a Service have been purchased. "Admin Users" are a particular type of User, with administrative rights to use the Services.
"We," "Us" or "Our" means FitMetrix, Inc., a corporation organized and existing under the laws of the State of Georgia, USA.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement and affiliates of that company or entity.
"Your Data" means all personally identifiable electronic data or information submitted by You or Your Users to the Services.
2.1 Provision of Services. Subject to Your compliance with this Agreement and timely payment of all applicable fees. We shall make the Services available to You pursuant to this Agreement during each Subscription Term.
2.2 User Subscriptions. Services are purchased based on the number of Your locations, and may not be accessed by Users other than Users at locations identified in the Estimate. Additional subscriptions based on an increase in the number of Your locations may be purchased by mutual execution of a revised Estimate or otherwise by written agreement between You and Us.
3.1 Our Responsibilities.
3.1.1. We shall: (i) provide to You support for the Services as defined below in Section 3.1.2 ("Support"), and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours' notice, and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
3.1.2 We shall provide Support to Your Admin Users via telephone and email. Support hours shall be no less than Monday through Friday during the hours of 8:00 a.m. Eastern time to 6:00 p.m. Eastern time, except for federal holidays. Response time shall be no less than twenty-four (24) hours, excepting weekends and federal holidays.
3.2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services, or (f) attempt to gain unauthorized access to the Services.
4.1. User Fees. There is no charge for the first thirty (30) days of the Subscription Term to allow for delivery of Hardware and for set-up. You shall pay all fees for Services, and, as applicable, the Hardware, specified in the Estimate after the initial thirty (30) day period. Subscription fees are based on calendar months, with pro-rated charges for partial months. You will provide Us with valid and updated credit card information, and You authorize Us to charge such credit card for all Services and Hardware listed in the Estimate on a monthly basis for the initial Subscription Term and any renewal Subscription Term(s). You are responsible for maintaining complete and accurate billing and contact information in the Services, as well as for payment of any fees or charges associated with Your payment other than those charged by Our bank.
4.2. Overdue Charges; Suspension of Service. If any charges are not received by Us by the due date, then at Our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by You under this Agreement is 30 or more days overdue, We may, without limiting Our other rights and remedies, suspend the Services until such amounts are paid in full.
4.3. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to sales, use or withholding taxes, assessable by any local, state, provincial, or federal jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder.
5.1. Reservation of Rights; Restrictions. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You shall not (i) permit any third party to access the Services; (ii) create derivate works based on the Services, (iii) reverse engineer the Services, or (iv) access the Services in order to copy any features, functions or graphics of the Services.
5.2. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. You grant Us and our subcontractors a limited, personal, transferable, non-exclusive license to use Your Data for the sole purpose to, and solely as required, to provide the Services.
5.3 Data Aggregation; Suggestions. We shall have the right to aggregate and analyze Your Data, and We shall have full right and title to such aggregated data and/or analysis, provided that such aggregated data and/or analysis does not include any personally identifiable information. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services and/or the Hardware any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the operation of the Services.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by You to Us, whether electronically, 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. Your Confidential Information shall include Your Data. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to You, (ii) was known to Us prior to its disclosure by You without breach of any obligation owed to You, (iii) is received from a third party without breach of any obligation owed to You, or (iv) was independently developed by Us without reference to Your Confidential Information.
6.2. Protection of Confidential Information. We: (i) shall use the same degree of care that we use to protect the confidentiality of Our own confidential information (but in no event less than reasonable care) not to disclose or use any of Your Confidential Information for any purpose outside the scope of this Agreement; and (ii) shall limit access to Your Confidential Information to those of Our employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Us containing protections no less stringent than those herein.
6.3. Compelled Disclosure. We may disclose Your Confidential Information if we are compelled by law to do so, provided that We give You prior notice of such compelled disclosure and reasonable assistance, at Your cost, if You wish to contest the disclosure.
7.1. Our Warranties. We warrant that the Services, and, as applicable, the Hardware, shall perform materially in accordance with the User Guide and the functionality of the Services and Hardware will not be materially decreased during a Subscription Term. For any breach of the foregoing warranties, your exclusive remedy shall be as provided in Section 10.2 (Termination for Cause)
7.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party); and (iii) at all times during the term of this Agreement it shall comply with all applicable laws, including all federal, state, and local laws, regulations, restrictions, orders, ordinances, codes, injunctions, and decrees of any governmental authority.
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY, AND ANY IMPLIED WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1. Indemnification. You shall defend Us against any claim, demand, suit, or proceeding made or brought against Us by a third party alleging (i) that Your Data, or Your use of the Services or Hardware in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (ii) a claim arising from the breach by You, or Users of this Agreement, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us in connection with any such claim that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such Claim.
9.1. Limitation of Liability. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8 HEREOF, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WITH RESPECT TO ANY SINGLE INCIDENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY YOU TO US HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
9.2. Exclusion of Consequential Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, DATA, USE OR OTHER ECONOMIC ADVANTAGE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAME OR FOR ANY CONTENT, OR ANY INTERRUPTION IN SERVICE, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1. Term of Services. The term of this Agreement (the "Subscription Term") shall commence as of the date that You accept the Estimate and provide credit card information to Us, and shall continue for thirteen (13) months. Except as otherwise agreed by the parties in writing, all subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the expiring Subscription Term.
10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
11.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
11.2. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.4. Attorney Fees. You shall pay on demand all of Our reasonable attorney's fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.1 (User Fees).
11.5. Relationship of the Parties; Assignment. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party; provided, however, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, or sale of all or substantially all of its assets.
11.6. Notices. All notices or communications under this Agreement to Us shall be sent by email to firstname.lastname@example.org except that in the case of notice by You of non-renewal pursuant to Section 10.1, such notice shall be sent by email to email@example.com. All notices or communications under this Agreement to You shall be sent by email to the email address provided by You during the registration process.
11.7. Governing Law; Jurisdiction. This Agreement and any disputes related hereto shall be governed by the laws of the State of Georgia, without regard to its conflicts of laws rules. The state and federal courts located in the State of Georgia shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each party hereby consents to the exclusive jurisdiction of such courts.