END USER LICENSE AGREEMENT FOR HEALTHI PRODUCTS
3. CHANGES TO AGREEMENT
ITRACKBITES MAY CHANGE THIS EULA AT ANY TIME UPON NOTICE TO YOU BY POSTING A NEW VERSION ON THE SERVICES. YOU ARE RESPONSIBLE FOR PERIODICALLY REVIEWING THIS EULA TO ENSURE THAT YOU ARE FAMILIAR WITH THE MOST RECENT VERSION. Your use of the Services after we post any changes to this EULA constitutes Your agreement to those changes.
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD. IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF A COMPANY, ORGANIZATION, EDUCATIONAL INSTITUTION, OR AGENCY INSTRUMENTALITY OR DEPARTMENT OF A GOVERNMENT (AN “ENTITY”) AS ITS AUTHORIZED LEGAL REPRESENTATIVE, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND REFERENCES TO “YOU” HEREIN REFER TO BOTH YOU, THE INDIVIDUAL END USER, AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS EULA.
Subject to Your compliance with this EULA, Healthi herby grants You a limited non-transferable, non-sublicensable, non-exclusive, revocable license to use the Services through the Website or by downloading and installing our Applications. Healthi reserves all rights not expressly granted by this EULA and You hereby acknowledge that all title and ownership of the Program and all associated intellectual property rights are and shall remain with Healthi. When accessing the Services through the Applications that were downloaded from an app store or app distribution platform, such as the Apple App Store or Google Play, (the “App Provider”), You acknowledge and agree that: (a) this EULA are concluded between us, and not with the App Provider, and that we are solely responsible for the Applications (not the App Provider); (b) the App Provider has no obligation to furnish any maintenance and support services with respect to the Applications; (c) in the event of any failure of the Applications to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider will refund the purchase price for the Applications to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Applications, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility; (d) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Applications or your possession and use of the Applications, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (e) in the event of any third party claim that the Applications or your possession and use of that Applications infringes that third party”s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA; (f) the App Provider, and its subsidiaries, are third party beneficiaries of this EULA as it relates to your license of the Applications, and that, upon your acceptance of the terms and conditions of this EULA, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to your license of the Applications against you as a third party beneficiary thereof; and (g) you must also comply with all applicable third party terms of service when using the Applications.
6. PAYMENTS AND PURCHASES OF VIRTUAL GOODS
Healthi may license to you certain virtual goods to be used within Healthi Services. Unless otherwise specified, these virtual goods shall be deemed an integral part of the Software. These virtual goods may be licensed both for a fee using “real world money” and without any separate fee, as applicable from time to time. These virtual goods may also be licensed by using third party virtual currency, such as Facebook Credits or by using separate activation codes. Any and all virtual goods are licensed to you on limited, personal, non-transferable, non-sublicensable and revocable basis and limited only for non-commercial use. Please note that any payment for licenses for virtual goods or redemption of third party virtual currency is always FINAL AND NON-REFUNDABLE. Healthi may manage, regulate, control, modify or eliminate virtual goods at any time, with or without notice. Healthi shall have no liability to you or any third party in the event that Healthi exercises any such rights.
SUBJECT TO MANDATORY LEGISLATION, YOU ACKNOWLEDGE THAT ITRACKBITES IS NOT REQUIRED TO PROVIDE A REFUND FOR VIRTUAL GOODS FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL GOODS, WHETHER YOUR LOSS OF LICENSE UNDER THIS EULA WAS VOLUNTARY OR INVOLUNTARY.
7. THE SERVICES DO NOT PROVIDE PROFESSIONAL MEDICAL ADVICE
Healthi provides the Services for educational purposes only. Healthi is not a medical organization and cannot give you medical advice or diagnosis. The information made available through the Services should not be interpreted as a substitute for physician consultation, evaluation, or treatment. If you have questions or concerns about individual health matters, You should seek the advice and services of a qualified medical and/or health care professional. YOUR USE OF THE SERVICES DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ITRACKBITES. YOU HEREBY AGREE THAT, BEFORE USING THE SERVICES, YOU WILL CONSULT YOUR DOCTOR REGARDING ANY MEDICAL PROBLEMS YOU MAY BE AT RISK FOR RESULTING FROM EXERCISE, CHANGES IN YOUR DIET, OR SMOKING RELATED HABITS.
8. NUTRITION DATABASE AND FOOD INFORMATION
Healthi’ food database (“Nutrition Database“) is comprised of nutritional information entered directly by Healthi, nutritional information provided by third party services, and nutritional information entered by Healthi members. Any Healthi member has the ability to enter nutritional information, as well as modify existing nutritional information. Healthi is not responsible for any incorrect, inaccurate, or unreliable information provided by the Nutrition Database. You are solely responsible for making sure any food nutrition information in the Nutrition Database is accurate, correct, and complete. You may not copy, duplicate, distribute, display, sell, translate, publish, transmit or modify any information in the Nutrition Database for commercial purposes without the express written consent of Healthi.
9. ACCURACY OF THIRD PARTY INFORMATION
You understand that by using the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that the Healthi shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable. You also understand that by using the Services, You may encounter opinions, advice, statements, or other information, including, without limitation, food, nutrition, exercise, and smoking related data made available by means of the Services by third parties, are those of their respective authors, and should not necessarily be relied on. Such authors are solely responsible for such content. ITRACKBITES DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR LOSS OR DAMAGES RESULTING FROM YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, USEFULNESS OR RELIABILITY OF ANY THIRD PARTY INFORMATION OR CONTENT POSTED ON THE SERVICES.
10. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY ITRACKBITES 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 SERVICES.
11. USER INFORMATION; PASSWORD PROTECTION
You may also be asked to provide a user name and password in connection with Your use of certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other member at any time. You agree to notify Healthi immediately of any unauthorized use of Your account, user name, or password. Healthi shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Healthi, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.
12. YOUR INTERACTIONS WITH OTHER MEMBERS
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT ITRACKBITES CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS. ITRACKBITES ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS MEMBERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS MEMBERS. ITRACKBITES MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS. IN NO EVENT SHALL ITRACKBITES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER REGISTERED USERS OF THE SERVICES OR PERSONS YOU MEET THROUGH THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER MEMBERS OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE, APPLICATIONS AND SERVICES.
13. FORUM CONTROL; MEMBER DISPUTES
Healthi does not control the forums made available by means of the Website and Services. Forum administrators and moderators reserve the right, in their sole discretion, to delete or modify forum posts, revoke membership to the forum, block access to the forum, modify Your account profile, or modify any User Content (as defined in Section 17 below) on the forum. You should contact the forum administrator directly with any complaint, grievance or problem. Healthi reserves the right, but disclaims any perceived, implied or actual duty, to monitor disputes between Website members. You agree to hold Healthi harmless in connection with any dispute or claim You make against any other member.
14. THIRD-PARY WEBSITES
The Services offered through the Website and/or Applications are provided, in whole or in part, by third parties (“Third-Party Services“), some of whom may have established relationships with Healthi and some of whom may not. Healthi does not have control over the content and performance of Third-Party Services. ITRACKBITES HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY SERVICES. ACCORDINGLY, ITRACKBITES DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY SERVICES. ITRACKBITES DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY SERVICES.
15. CONSENT TO RECEIVE EMAIL
You consent to receive email communications from Healthi regarding the Services, new product offers and other promotions. You can opt out of receiving these email communications by following the unsubscribe instructions contained within the email or by contacting us at email@example.com.
16. USER CONTENT
YOU HEREBY GRANT THE ITRACKBITES PARTIES A PERPETUAL, FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, IRREVOCABLE, ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE WEBSITE, SERVICES OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND PUBLICITY. YOU FURTHER AGREE THAT THE ITRACKBITES PARTIES MAY PUBLISH OR OTHERWISE DISCLOSE YOUR PERSONAL INFORMATION IN CONNECTION WITH THEIR EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE ITRACKBITES PARTIES OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.
You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the Healthi Parties under this section.
17. COMMUNITY FORUMS
“Community Forums” is any area, site or feature offered as part of the Services (including without limitation public profiles, discussion forums, message boards, blogs, chat rooms, emails or instant messaging features) that enables You (a) to upload, submit, post, display, perform, distribute and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other members or visitors. You acknowledge that Community Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share or exchange by means of any Community Forums may be viewed on the Internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share or exchange by means of any Community Forum and for the consequences of submitting or posting same. ITRACKBITES DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR COMMUNITY FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED THEREON.
18. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that you may be held legally responsible for damages suffered by other members or third parties as the result of Your remarks, information, feedback or other content posted or made available on the Services that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, Healthi is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content posted or made available on the Services.
19. OBJECTIONABLE CONTENT
You represent and warrant that you shall not use the Services to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit personal information; (d) incite, encourage or threaten physical harm against another; (e) promote or glorify racial intolerance, use hate and/or racist terms, or signify hate towards any person or group of people; (f) glamorize the use of hard core illegal substances and drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this EULA or any other Healthi agreement, guidelines or policy; or (i) is generally offensive or in bad taste, as determined by Healthi (collectively, “Objectionable Content“). ITRACKBITES DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENTS OF THE SERVICES AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other remedies, Healthi reserves the right to terminate Your use of the Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. Healthi, in its sole discretion, may delete any Objectionable Content from its servers. Healthi intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this EULA or of any applicable laws.
20. PROHIBITED USES
Healthi imposes certain restrictions on Your use of the Services. You represent and warrant that you will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to Healthi or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) while, using the Website and Services, use “ad blocking” software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; (e) modify or change the placement and location of any advertisement appearing on the Website; (f) harvest or otherwise collect information about Healthi users, including email addresses and phone numbers; (g) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (h) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (i) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (j) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding” “spamming,” “mail bombing,” or “crashing”; (k) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (l) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (m) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Healthi Parties in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
21. INTELLECTUAL PROPERTY RIGHTS
Rights to Services. You acknowledge and agree that the Services and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Healthi. Furthermore, You acknowledge and agree that the source and object code of the Services and the format, directories, queries, algorithms, structure and organization of the Services are the intellectual property and proprietary and confidential information of Healthi and its affiliates, licensors and suppliers. Except as expressly stated in this EULA, You are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in this EULA are hereby reserved and retained by Healthi.
b. Third Party Software.
The Services 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 Services 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 EULA 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 Services or components thereof be deemed to be “open source” or “publicly available” software.
Healthi, Healthi.com and the Healthi logo (collectively, the “Healthi Marks“) are trademarks or registered trademarks of Sunshine Health Studios LLC. Other trademarks, service marks, graphics, logos and domain names appearing on the Services may be the trademarks of third-parties. Neither Your use of the Services nor this EULA grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the Healthi Marks or any Third-Party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Healthi Marks generated as a result of Your use of the Services will inure to the benefit of Sunshine Health Studios LLC. and You agree to assign, and hereby do assign, all such goodwill to Sunshine Health Studios LLC. You shall not at any time, nor shall You assist others to, challenge Healthi’ right, title, or interest in or to, or the validity of, the Healthi marks.
d. Healthi 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 Sunshine Health Studios LLC or are the property of Healthi’ licensors and suppliers. Except as explicitly provided, neither use of the Services nor this EULA grant You any right, title or interest in or to any such materials. Copyright © 2013 to the present, Sunshine Health Studios LLC. ALL RIGHTS RESERVED.
22. DISCLAIMERS; LIMITATION OF LIABILITY
a. NO WARRANTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SERVICES AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK. ITRACKBITES AND ITS THIRD-PARTY SERVICE PROVIDERS, AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SERVICES 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, ITRACKBITES AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT: (i) THE SERVICES OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICES 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 SERVICES WILL BE AS REPRESENTED TO MEET YOUR EXPECTATIONS; OR (iv) ANY ERRORS IN THE SERVICES OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ITRACKBITES OR FROM THE SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT ITRACKBITES AND APPLE HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE SERVICES.
b. YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE WEBSITE, APPLICATIONS AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD ITRACKBITES OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE WEBSITE, APPLICATIONS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE
c. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL ITRACKBITES OR ITS AFFILIATES, PARTNERS, SUPPLIERS, THIRD-PARTY SERVICE PROVIDERS 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 SERVICES AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ITRACKBITES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ITRACKBITES’ AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50 USD). 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 ITRACKBITES AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND ITRACKBITES OR BETWEEN YOU AND ANY OF ITRACKBITES’ THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. ITRACKBITES’ THIRD-PARTY SERVICE PROVIDERS LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
23. GENERAL REPRESENTATION AND WARRANTY
You represent and warrant that Your use of the Services will be in accordance with this EULA and any other Healthi policies, and with any applicable laws or regulations.
You shall indemnify, defend and hold harmless Healthi 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 Services or Third Party Content and Services; (ii) Your breach of this EULA; (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 EULA.
24. GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, including without limitation this EULA’s interpretation, shall be treated as though this EULA were executed and performed in Texas, United States and shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, 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 IN ABOVE. The language in this EULA shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
Either party may terminate this EULA and its rights hereunder at any time, for any or no reason at all, by providing to the other party notice of its intention to do so. This EULA will terminate automatically if You fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any Healthi Services. Any termination of this EULA automatically terminates all rights and licenses granted to You under this EULA, including all rights to use the Website, Applications and Services. Subsequent to termination, Healthi reserves the right to suspend or disable your access to or use of the Services by whatever means it deems necessary to prevent Your unauthorized use of the Services.
All notices required or permitted to be given under this Agreement must be in writing. Healthi shall give any notice by email sent to the most recent email address, if any, provided by You to Healthi. You agree that any notice received from Healthi electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH ITRACKBITES IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY ITRACKBITES OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Healthi by means of: (1) postal service, postage prepaid, to Sunshine Health Studios LLC, 600 Congress Ave, Austin, TX 78701; or (2) email to: firstname.lastname@example.org. Notice to Healthi shall be effective upon receipt of notice by Healthi.