Dr. Abs Fit App End User Licence Agreement
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires or is specified otherwise:
App means the Dr. Abs Fit MacroApp application software, websites, content, software, and technology, through which you can access the Services and other features, and includes any upgrades or updates to the same;
Contact Information means any information You provide Us with that allows Us to identify or contact You (e.g. Your name and email address);
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, name and likeness, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
Licensors means the third-party licensors that own or license to Us any Intellectual Property Rights in the App or the Services;
Preferences means the information about Your specific workout, nutritional preferences, and related goals, entered into the App through the use of Your login details but does not include any of Your Contact Information;
Services means the provision of custom workout and nutritional plans matched to a user’s preferences;
Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
Usage Data means any data We may collect about the way in which You and other App users use the App but does not include any of Your Data;
We, Us and Our refers to Dr. Abs Fit, LLC;
You and Your refers to You, the individual that registers to use the App; and
Your Data means the Preferences and Contact Information.
2. Licence and Access
2.1 We grant You a non-exclusive, non-transferable right to access and use the App for the term of this Agreement solely for Your own personal, non-commercial use and on a device that You own and/or control, all on the terms and conditions set out in this Agreement.
2.2 We will use reasonable endeavours to make the App available to You on and subject to the terms of this Agreement.
(a) will keep logins and passwords for Your access and use of the App confidential and ensure You are the only person to access and use the App through use of Your login details;
(b) are fully responsible for all activities that occur under Your account and agree to immediately change Your password in the event of any breach of security;
(c) acknowledge and agree that We may disable Your login account if We discover that Your login details have been provided to any third party;
(d) will log-out of the App if You are not using the App for any extended period of time or not in control or possession of the device on which You are accessing the App;
(e) acknowledge and agree that You may be automatically logged out of the App after a period of time of inactivity and, if so, You will be required to log in again in order to access and use the App; and
(f) will ensure that all Your Data that You provide to Us is true and correct and kept up to date for so long as You continue to use the App.
2.4 You will not access, store, distribute or transmit any Viruses through the App, and We may, without liability to You, disable Your access to the App if You are in breach of this clause.
2.5 You will not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between You and Us:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the App (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the App;
(b) access all or any part of the App in order to build a product or service which competes with the App or the Services;
(c) use the App to provide services to third parties;
(d) attempt to undermine the integrity or security of:
(i) the App; or
(ii) Our, Our Licensors’, or any other third party’s, systems, networks or resources used in the provision of the App;
(e) attempt to gain unauthorised access to any information or materials other than those to which You have been given express permission to access as part of the App;
(f) attempt to obtain, or assist third parties in obtaining, access to the App, other than as provided under this clause 2.
2.6 You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the App and, in the event of any such unauthorised access or use, promptly notify Us.
3. Changes to the App
3.1 You acknowledge that We may upgrade and update the App and that the App is continually evolving. You may be required to install upgrades and updates to the App or to upgrade the device You use to access the App or the operating system running on that device in order to continue to use the App.
3.2 Although We use reasonable endeavours to ensure that any upgrades and updates to the App do not cause any problems in Your use of the App, Our liability to You to the extent that problems arise from such upgrades and updates is limited in accordance with clause 9.
3.3 We reserve the right at any time and from time to time to modify, discontinue or restrict access to the App (or any part of it), temporarily or permanently with or without notice to You. To the fullest extent permitted by law, You agree that We will not be liable to You or to any third party for any modification, restriction, suspension or discontinuance of the App. If you have prepaid any fees for access to the App and We permanently discontinue Your access to the App in circumstances where You have not breached this Agreement (in Our reasonable opinion), then We may refund the pro-rated amount of any such unused fees.
4. Your Data and Usage Data
4.1 We acknowledge and agree that, except for the rights You grant Us to use Your Data under this Agreement, You will own all rights, title and interest in and to all of Your Data and You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
4.2 While We will take reasonable measures against the accidental loss, destruction or damage of Your Data, to the fullest extent permitted by law, We will not be responsible for any loss, destruction, alteration or disclosure of Your Data and You should ensure that You back-up any important information included in Your Data in a separate location on regular basis.
4.3 In so far as any of Your Data or any Usage Data is personal information for the purposes of any applicable privacy laws (Personal Information), We will comply with Our obligations under privacy laws of the State of Florida with respect of that Personal Information. You acknowledge and affirmatively agree that We are permitted to share or disclose Your Personal Information:
(a) in accordance with applicable privacy laws, including without limitation where We believe on reasonable grounds that We are required to do so by law or that disclosure is necessary to facilitate the disposition of the App business (whether as a going concern or otherwise);
(b) with or to Our Licensors for the purposes of those Licensors seeking to improve or enhance the App (including services provided through the App), or create new services that may be of interest to you;
(c) as agreed by You under this Agreement.
If You have any questions in connection with Our use of any Personal Information You have provided to Us or You wish to access Your Personal Information please write to Us at Our registered office address above or at:
4.4 You acknowledge and agree that We may use Your Data for the purpose of:
(a) providing the App to You and otherwise performing Our obligations under this Agreement. This may include passing Your Data to Our Licensors or other third party service providers We use to provide the App (including without limitation overseas data centre and outsourcing providers);
(b) ensuring that You are complying with the terms and conditions of this Agreement;
(c) improving or enhancing the App;
(d) marketing Our own and third-party products and services to You, where You have provided consent, or otherwise agreed, that We may do so; and
(e) exercising any other right we have under this Agreement.
4.5 In addition to clause 4.4, You acknowledge and agree that:
(a) We will have the right and be free to use Your Data on an anonymous basis for any purpose, commercial or otherwise, including for data analysis and market research purposes, and that We will be free to provide such data and grant such use rights to Our Licensors, business partners and other third parties. The rights granted by You to Us under this clause are perpetual and irrevocable; and
(b) We may provide Your Contact Information to third parties, such as Our business partners, for marketing purposes provided that We have obtained Your specific consent to do so.
4.6 Any Usage Data We collect will be owned by Us or Our Licensors. We and Our Licensors will only use such Usage Data in an anonymised form and will be free to do so for any purpose, commercial or otherwise.
5. Your Obligations
5.1 You will:
(a) provide Us with all necessary co-operation in relation to this Agreement so that We can You access to the App;
(b) comply with all applicable laws (including privacy laws) and any third party terms You have agreed to (for example with Your telecommunications service provider) with respect to Your use of the App and Your activities under this Agreement;
(c) use the App in accordance with the terms and conditions of this Agreement and carry out all of Your other responsibilities set out in this Agreement in a timely and efficient manner;
(d) be solely responsible for:
(i) procuring and maintaining Your network connections and telecommunications links from the device You use to access the App; and
(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
5.2 You confirm that You have all the rights in relation to Your Data that are necessary to grant Us the right to use it as set out in the terms of this Agreement.
6. Risks Associated with the Services
6.1 The workout and nutrition information and recommendations provided through the App are not intended as a substitute for medical advice from Your health care provider. You uncondtionally acknowledge that We are not your medical organization or your health care provider. You acknowledge that all fitness activities, including strength training and conditioning, present inherent risk of possible physical stress and injury, and You acknowledge and agree to assume this entire risk in purchasing and using the Services. You further acknowledge that any training or nutritional recommendations are intended for an individual user based on specific input regarding that user and are not intended for the use of anyone besides that specific user. WE OR ANY INFORMATION CONNECTED TO US OR THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY. WE DO NOT PROVIDE, NOR ARE A SUBSTITUTE, FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN WITH ALL QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. CALL YOUR DOCTOR OR 911 IMMEDIATELY IF YOU BELIEVE YOU MAY HAVE A MEDICAL EMERGENCY. RELIANCE ON ANYTHING CONNECTED TO US OR THE SERVICES IS SOLELY AT YOUR OWN RISK.
6.2 You acknowledge that You have been advised to consult a licensed physician or doctor before using any of the Services, and any associated methods or practices, to ensure that there are no potential or foreseeable health or injury risks from Your use of the Services.
7. Intellectual Property Rights
7.1 You acknowledge and agree that We and/or Our licensors own all Intellectual Property Rights in the App. Except as expressly stated in this Agreement, this Agreement does not grant You any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the App.
8. Purchases Through the App
8.1 Certain features or functionality of the App may allow You to purchase additional products or services. You agree to pay for any and all such products and services provided through the App that are ordered through Your account. You authorise Us to charge Your credit card (or other payment instrument or method) for any such products or services purchased and for any additional amounts (including any applicable taxes, late payment fees, and/or associated bank fees) that may be incurred by or in connection with Your account. You are responsible for the timely payment of all fees and for providing Us with a valid credit card or form of payment for all fees. All fees will be billed to the credit card You designate during the registration process. If You wish to designate a different credit card or form of payment, then You are solely responsible for changing such information online in Your account setting.
8.2 All purchases made through the App are final, to the extent permitted by law.
9. Warranties and Liability
9.1 You acknowledge that the App is provided on an “as is” basis and all representations, conditions or warranties in respect of the App and the Services (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded to the fullest extent permitted by relevant law.
9.2 In particular and without limiting clause 9.1, We do not warrant that:
(a) Your use of the App will be uninterrupted or error-free;
(b) the App will meet Your requirements; or
(c) the App will be free from Viruses.
9.3 You agree that, to the maximum extent permitted by law, We will not be liable for any form of loss or damage or injury, regardless of cause or origin, on any basis whatsoever, (including but not limited to breach of contract, warranty, negligence, strict liability in tort or otherwise), arising out of or in connection with this Agreement or Your reliance on or use of the App and/or the Services.
9.4 Without limiting clause 9.3, You agree that:
(a) You will not rely solely on the App to store Your Data and that, to the maximum extent permitted by law, We will not be responsible for the loss, destruction or damage of Your Data, however caused; and
(b) before using any data exported or otherwise retrieved from the App (including Your Data) You will verify the accuracy, correctness and completeness of such data and will carry out Your own assessment of the appropriateness of such data for the purpose for which You intend to use it and that We will not be responsible for any errors or omissions in such data, however caused.
9.5 The entire risk, in connection with Your use of the Services and the App, as to satisfactory quality, performance, accuracy and effort is with You. You agree that You will obtain (including, without limitation, through download) any content entirely at Your own risk, and You will be solely responsible for any resulting infringement, breach of contract, consequence or damage, including (without limitation) bodily injury, death, damage to Your devices or computer system or loss of data.
9.6 To avoid doubt, You agree that You may not rely, and We will not be liable for Your reliance, on any information or opinions expressed on the App or in the Services, including any decisions You make about diagnosis or treatment. Any opinion or information presented on the App is for Your convenience only and will not create any warranty not expressly stated in this Agreement.
9.7 YOU AGREE YOU WILL NOT HOLD US, OR OUR LICENSORS, AFFILIATES, AND PARTNERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF SERVICES IN ANY FORM WHATSOEVER.
9.8 You acknowledge that:
(a) We may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to make the App available to You (Third Party Providers) and that the App may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
(b) to the maximum extent permitted by law, We will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or is in connection with any services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
9.9 You acknowledge that Our Licensors have no liability to You under this Agreement whatsoever.
9.10 You will indemnify Us and Our Licensors against all costs, losses, expenses and damages incurred through any claims against Us or Our Licensors arising out of or in connection with the App.
10. Third Party Content and Links
10.1 We may make available links to websites operated by third parties, including advertisers. Making available any link to a website does not imply endorsement by Us of that website or the products or services available through that website, and the link may be for Your reference and convenience only. Products, services, and content offered through linked websites are subject to the terms and conditions made available by those respective websites, and the data collection practices of linked websites will be governed by the respective privacy policies of those websites, not by Ours. Following links to any other websites or web-based services is at Your own risk, and any claims You have with respect to products, services, or content accessed through linked websites are claims against third parties, not against Us.
10.2 We also may post or otherwise provide access to websites, materials, or content of third parties (Third Party Content) as a service to those that might be interested in this information. We do not guarantee, endorse or adopt the accuracy, completeness, legality, or innocuousness of any Third Party Content. We are not responsible for updating or reviewing Third Party Content. Your access and use Third Party Content at Your own risk.
10.3 You agree that We are not responsible for examining or evaluating the content or accuracy, and do not warrant and will not have any liability or responsibility for any Third Party Content. You agree not to use any Third Party Content in a manner that would infringe or violate the rights of any other party and that We and Our Licensors are in no way responsible for any such use by You.
11.1 This Agreement constitutes the entire agreement between You and Us in relation to the App and supersedes any previous understanding or agreements on that subject matter.
11.2 If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
11.3 A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
11.4 A party to this Agreement may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
11.5 For the purposes of contractual privity, this Agreement is for the benefit of, and may be enforced by, any of Our Licensors.
11.6 This Agreement may be varied by Us at any time. Unless otherwise stated, amendments to these terms will be effective upon posting of the modified terms on this page which is accessible under the login screen on the App. You will ensure that You have read, understood and agree to the most recent terms as posted on this page. You agree that Your continued use of the App represents Your agreement to be bound by the most recent terms.
11.7 You will not assign, transfer or otherwise deal with this Agreement or any of Your rights or obligations under this Agreement, whether in whole or in part, without Our prior written consent.
11.8 This Agreement will be governed by and construed in accordance with the laws of the State of Florida.
11.9 Should You wish to take any action against Us in respect of the App and/or this Agreement, You agree that venue for any action will solely be commenced within the courts of Miami-Dade County, Florida, including the federal courts therein, which courts will have exclusive jurisdiction over such actions and proceedings as provided herein. You further agree to waive any rights to forum non convienens.
12. Apple Device Terms
12.1 This clause 12 applies to You only if You use an Apple device (e.g., iPhone, iPad, iPod Touch) to access the App. It does not apply to You if You do not use the App on an Apple Device.
12.2 You and Us both acknowledge and agree that:
(a) this Agreement is concluded solely between You and Us, and not with Apple, and Apple is not responsible for the App and the content thereof;
(b) any maintenance or support that may be offered by Us in connection with the App is solely Our responsibility and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
(c) in the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and request a refund the purchase price (if any) You paid for the App through Apple’s App Store. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App;
(d) Apple is not responsible for addressing any claims by You or any third party relating to the App or Your possession and/or use of the App. In the event of any third party claim that the App or Your possession and use of it infringes that third party’s intellectual property rights You should contact Us as Apple will have no responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
(f) except as provided in clause 12.2(c), any questions, complaints or claims with respect to the App should be directed to Us at the following address:
12.3 You represent and warrant that (i) You are not located in a 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; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.