End User License Agreement

IF YOU DOWNLOAD THE SOFTWARE SUBJECT TO THESE TERMS BY CLICKING THE 'I AGREE' BUTTON, AND/OR USE THE FitNow SOFTWARE OR ANY INCLUDED DOCUMENTATION (together the "Software"), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (the "Agreement"), AND THIS WILL BE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND FITNOW, INC. ("FitNow"). PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING THESE TERMS AND USING THIS SOFTWARE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD REJECT THEM BY NOT DOWNLOADING THE SOFTWARE.  References in this Agreement to "you" or "your" refer to both you and any person or entity on whose behalf you act, if any.

1. Grant Of License.  Subject to the terms and conditions of this Agreement, FitNow hereby grants to you a personal, non-transferable and non-exclusive license to install and use the Software on your iPhone device for the purposes of your own diet and exercise needs. 

2. Software Use Restrictions.  You shall not sublicense, distribute, hypothecate, lease, loan or otherwise convey the Software or any portion thereof to anyone, and under no circumstance may you use or allow the use of the Software in any manner other than as expressly set forth above.  You shall not modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or part of the Software.  You shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software.  You shall not use the Software in connection with a service bureau, time sharing or fee-for service arrangement with third parties.  Except to the extent permitted by applicable local law, you shall not reverse assemble, decompile or disassemble or otherwise reverse engineer any portion of the Software.  If you dispose of any media embodying Software, you will ensure that you have completely erased or otherwise destroyed any Software stored on such media.  THE SOFTWARE IS NOT INTENDED FOR USE IN ANY SITUATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH OR BODILY INJURY OF ANY TYPE.

3. Copying Restrictions. You may copy the Software onto your iPhone device, and you may make one (1) copy of the Software for backup or archival purposes. You agree that (i) your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) you shall place the same proprietary and copyright notices and legends on all such copies as included by FitNow on any media embodying an authorized copy of the Software originally provided by FitNow.  Except as described in this paragraph, you are not permitted to copy the Software.  

4. Disclosure Restrictions. You acknowledge that the Software, including the source code for the Software and any information derived therefrom, constitutes a valuable trade secret of FitNow.  You shall not disclose such materials to anyone.

5. Ownership of Software. You agree and acknowledge that (i) the Software is licensed to you, not sold, and FitNow transfers no ownership interest in the Software, in the intellectual property in any Software or in any Software copy, to you under this Agreement or otherwise, (ii) that FitNow and its licensors reserve all rights not expressly granted to you hereunder, (iii) FitNow or its licensors own the Software (including, but not by way of limitation, any images, algorithms, photographs, animations, video, audio, music and text incorporated in the Software), and (iv) the Software is protected by United States Copyright Law and international treaties relating to protection of copyright. The Software includes, and this Agreement will cover, any updates, upgrades or bug fixes for the Software provided to you.

6. Transfer Restrictions. You may transfer the Software and all licenses and rights in the Software granted to you under this Agreement to a third party provided that: (i) such transferee agrees to accept the terms and conditions of this Agreement, and (ii) you also transfer all Software, including all copies thereof, to such transferee. Except as provided in this Section, you may not transfer or assign this Agreement or any of your rights or obligations under this Agreement, in whole or in part.

7. Export Restrictions. You may not export or reexport any Software except in full compliance with all United States laws and regulations, executive orders and the like, including in particular the Export Administration Regulations of the U.S. Department of Commerce. Without limitation of the foregoing, no Software may be exported or reexported into (or to a national or resident of) any country to which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Denied Persons List.

8. Enforcement Of Terms; Termination. If you fail to fulfill any of your obligations under this Agreement, this Agreement will automatically terminate, and FitNow and/or its licensors may pursue all available legal remedies available to them. You agree that FitNow's licensors referenced in the Software are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property.  Sections 2-9 and 11-18 shall survive any termination or expiration of this Agreement.

9. U. S. Government Users. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by FitNow for licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with Federal procurement law.  Contractor/manufacturer is FitNow, Inc.

10. Assumption of Risk.  You acknowledge that your diet and exercise activities involve risks, which may involve risk of bodily injury or death, and that you assume those risks.  You should consult a licensed physician prior to beginning or modifying any diet or exercise program that you undertake, and you acknowledge that FitNow has advised you of the necessity for obtaining such consultations.  In addition, the Software should not be used by pregnant women or individuals under age 18.  The Software is a source of information, but it does not provide medical advice.  In no event shall FitNow be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software or any diet, exercise or other activity you undertake in connection with your use of the Software.

11. Disclaimer of Warranty.  FITNOW PROVIDES THE SOFTWARE TO YOU "AS IS", WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  FITNOW MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY FITNOW EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.  FITNOW'S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE.

12. Limitation Of Liability. IN NO EVENT SHALL FITNOW OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT FITNOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FITNOW'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND FOR ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE LESSER OF (A) $10; OR (B) THE FEE YOU PAID FOR YOUR LICENSE TO THE SOFTWARE.

13. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law rules.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

14. Disputes.  A party shall not seek relief from a court with respect to any dispute arising in connection with this Agreement (except for any application for urgent equitable relief) unless such dispute has first been referred to voluntary mediation, and, if such mediation is not successful, has been submitted to arbitration conducted by a panel of three arbitrators sitting in Boston, Massachusetts.  Each party shall choose one arbitrator and those two shall choose the third.  The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association and the decision of the arbitrators shall be binding and enforceable in any court of competent jurisdiction.  The arbitrators shall have no power to award punitive damages nor any damages inconsistent with this Agreement or measured other than by the actual losses suffered by the parties. 

15. Complete Agreement; Waiver; Severability. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and FitNow relating to the Software or the terms of its license to you, and may only be modified in writing signed by you and FitNow.  In the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, the remaining terms shall survive and be enforced to the maximum extent permissible by law.  No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced.   If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties.  The parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid or unenforceable provisions.

16. Consent to Electronic Contracting.  You agree that execution of this Agreement may occur by your manifesting your acceptance of it when you downloaded the Software, and that no signature on a paper copy of this Agreement is required in order to form a binding contract.  

17.  Privacy Disclosure.  FitNow may use analytics technology to track anonymous traffic data about the use of the Software.  This data does not include any personally identifiable information of you, the user.  Some of the analytics technology described in this paragraph is provided to FitNow by Google, Inc. ("Google").  Under the Google Analytics Terms of Service, Google and its subsidiaries have the right to retain and use the anonymous traffic data collected by the Google Analytics service from users of the Software. Google’s use of such data is subject to the Google Privacy Policy located at http://www.google.com/privacy.html.

18. Third Party Software Provisions.  The Software incorporates certain materials provided by ESHA Research, Inc.  Your right to use the ESHA materials is subject to the ESHA End User License Agreement, which is formed between you and ESHA, as set forth below.

ESHA END USER LICENSE AGREEMENT

This End User License Agreement ("Agreement") is entered into, effective immediately, between ESHA Research, Inc., an Oregon corporation ("ESHA"), and you, the licensee entering into this Agreement ("Licensee"). 

ESHA is the developer and owner of certain software, databases and user documentation used for nutritional analysis ("Licensed Materials"). Licensee wishes to acquire a non-exclusive, non-transferable license to use the Licensed Materials for Licensee's own internal, personal nutritional analysis requirements.  Licensee shall be deemed to have entered into this Agreement, effective upon the earliest of any of the following acts manifesting Licensee's assent: (a) by clicking "I Agree" at the end of the licensing terms on the ESHA (or ESHA licensee) web site; (b) by clicking "I Agree" at the end of the license terms on the software/database installation licensing screen; or (c) by opening any shrinkwrap packaging for the Licensed Materials and failing to return the Licensed Materials to ESHA within 10 days after opening the packaging (return postage guaranteed by ESHA).

In consideration of the warranties, covenants, terms and conditions below, the parties agree as follows:

1. Grant of License.  ESHA hereby grants Licensee a limited, personal, nontransferable, nonexclusive license to use the Licensed Materials in the manner, and subject to the terms, set forth below. This license is granted for the object code version of the Licensed Materials and any customized derivative or supplemental Licensed Materials provided to Licensee pursuant to the terms of this Agreement.

2. Scope of License.   

   (a) Under this license, Licensee may: 

       (i) use the Licensed Materials for Licensee's personal nutritional analysis needs by installing the Licensed Materials on one of Licensee's computer's permanent storage devices (such as a hard drive) at a single licensed location, by loading the Licensed Materials into such computer's temporary memory (RAM), and by using or disclosing the results of Licensee's analyses; provided, however, that if the results of such analyses are published by Licensee, such publication shall contain an attribution to ESHA, such as "Powered by Esha Research" or "Courtesy of Esha Research." 

       (ii) for Licensed Materials distributed on CD ROM, make a single copy of the Licensed Materials for backup/archival purposes on any such computer at the licensed location; and 

       (iii) for Licensees who are educational institutions, grant its current faculty and currently registered student population to use the Licensed Materials, on a non-concurrent basis, in the manner set forth in subparagraph (i) above.
 
   (b) Under this license, Licensee may not:

       (i) sublicense, rent, lease, lend or otherwise transfer the Licensed Materials or Licensee's rights under this Agreement without the prior written consent of ESHA; 

       (ii) use the Licensed Materials to provide services to third parties who are not direct end users of the nutritional analyses, such as providing services as a service bureau;
 
       (iii) remove or obscure ESHA's copyright, trademark or other proprietary rights notices on any Licensed Material; or 

       (iv) compile the Licensed Materials from one form to another, or attempt to modify, convert, reverse engineer, reverse compile, change or reverse assemble them.  

3. Term of License.  This license is effective from the date this Agreement is executed and, unless otherwise terminated under the terms contained herein: (a) with respect to Licensed Materials distributed in CD format, is perpetual; and (b) with respect to Licensed Materials to which access is granted via the Internet, is subject to the duration of the hosting services provided by the party distributing access to the Licensed Materials, and is therefore terminable at will. If Licensee breaches any provision of this Agreement and ESHA terminates the license granted under this Agreement, Licensee shall immediately return to ESHA all copies of the Licensed Materials in its possession or control, if any, (including all original and updated versions and documentation thereto).
  
4. Licensee's Obligation to Protect the Licensed Materials.  ESHA is the sole owner of the Licensed Materials (including all customized and derivative work), all of which is protected by the Copyright and contract laws of the United States and by international treaties. All rights not specifically granted in this license are reserved by ESHA.  ESHA has devoted substantial resources to the development of the Licensed Materials, and has substantial proprietary interests and valuable trade secrets in it, including, without limitation, nutritional data, database structures, algorithms, and methods and procedures contained in the object code, which Licensee has agreed not to analyze or reverse engineer under this Agreement.  Licensee covenants to keep the Licensed Materials secure and confidential, and will use such materials only for the purposes set forth in this Agreement.  As a continuing condition of this license, Licensee covenants that it shall: (a) keep all copies of the Licensed Materials solely in its possession; and (b) use its best efforts to protect the Licensed Materials from unauthorized use, reproduction, publication, distribution, analysis or reverse engineering.

5. Copyrights.  ESHA is the sole and exclusive owner of the copyright interests and other proprietary interests in the Licensed Materials and all derivative works. ESHA and Licensee agree that none of the Licensed Materials and supporting documentation licensed, customized or otherwise modified under this Agreement, including all code, writings, notes, documents, reports, flow charts and drawings used or created in the course of such development, is "work made for hire" as that term is defined under Section 101 of the United States Copyright Act, and that ESHA shall remain the sole and exclusive owner of all copyright interests and other proprietary interests in such Licensed Materials, documentation and derivative works. Licensee's rights to such Licensed Materials and documentation shall be governed solely by its rights as a licensee under this Agreement.

6. Maintenance and Support.  Except as specifically set forth in this Agreement, any right of Licensee to maintenance or support of the Licensed Materials, including any right to technical support services or Licensed Materials updates and upgrades, shall be subject to a separate written agreement. 

7. Limitation of Warranties.  ESHA is licensing the Licensed Materials "AS IS," and makes no warranties, express or implied.  In particular, ESHA does not warrant that the information contained, used or reported in the Licensed Materials will be completely accurate or up to date, or suitable for use in making dietary or other health or medical decisions.  ESHA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES UNDER THE UNIFORM COMPUTER INFORMATIONAL TRANSACTIONS ACT, AS MAY BE ADOPTED BY ANY JURISDICTION.  Applicable law may not allow the exclusion of implied warranties, so the above disclaimer may not apply to Licensee as it relates to implied warranties.

8. Limitation of Remedies.  In no event shall ESHA be liable to Licensee for any indirect, incidental, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof, even if ESHA has been advised of the possibility thereof.  IN PARTICULAR, ESHA SHALL NOT BE LIABLE FOR THE LOSS OF INFORMATION OR ANY ADVERSE HEALTH OR MEDICAL EFFECTS ARISING FROM THE USE OF, OR INABILITY TO USE, THE LICENSED MATERIALS.  ESHA'S LIABILITY TO LICENSEE, IF ANY, WHETHER ARISING UNDER CONTRACT, STRICT LIABILITY, STATUTE, OR BASED UPON A CLAIM OF NEGLIGENCE OR SOME OTHER TORT CLAIM, SHALL IN NO EVENT EXCEED THE TOTAL LICENSE FEE PAID TO ESHA HEREUNDER.  The warranties and remedies set forth above are exclusive and in lieu of all others, oral or written, expressed or implied.  No ESHA distributor, dealer, employee or agent is authorized to modify or extend the above warranties or remedies in any manner.  Some states may have statutory consumer protection provisions, which may supersede this provision of the Agreement.  Some states do not allow the limitation or exclusion of implied warranties or the limitation of incidental or consequential damages, so the above exclusions may not apply to Licensee.  This warranty gives Licensee specific legal rights, and Licensee may also have other rights which vary from state to state.

9. Export Restrictions.  Neither the Licensed Materials nor the underlying information or technology within the Licensed Materials may be downloaded or otherwise exported or reexported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.  By using the Licensed Materials, Licensee is agreeing to the foregoing and is representing and warranting that it is not located in, under the control of, or a national or resident of, any such country or on any such list.

10. U.S. Government Restricted Rights.  The Licensed Materials are provided with restricted rights.  use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1)(ii) of subparagraphs (c)(1) and (2) of the Commercial Computer Licensed Materials -- Restricted Rights at 48 CFR 52.227-19, as applicable.  Contractor/Manufacturer is: ESHA Research, Inc., 4275 Commercial Street SE, Salem, Oregon 97302.

11. Communication/Notices.  Any notice, request, demand, or other communication to be provided under this Agreement shall be in writing, and shall be delivered to the parties at the addresses designated in the license purchase and registration materials, or at such other address as a party may later designate by written notice to the other party.  All notices shall be effective upon hand delivery or when placed in the United States mail, properly addressed, with postage prepaid as certified mail.

12. Notice of Default.  Except for defaults in any Licensee obligations arising out of paragraphs 1 through 5 above, for which a 48 hour notice and cure period shall be required, neither party shall be deemed in default until the party claiming the default has given written notice to the other party, and the claimed default has not been remedied within 30 days of notice.

13. Remedies Upon Breach.  In the event of a breach of this Agreement, the non-breaching party shall be entitled to immediately terminate the license under this Agreement and pursue all remedies available to it under the laws of the State of Oregon and applicable laws of the United States.  In addition, Licensee agrees that in the event Licensee breaches any of the covenants contained in paragraphs 1 through 5 of this Agreement, such a breach will result in irreparable and continuing damage to ESHA in an amount which is not readily ascertainable and for which there will be no adequate remedy at law.  In the event of any breach of such covenants, ESHA shall be entitled to seek injunctive relief and such other and further relief, including damages, as may be provided by law.

14. Attorneys' Fees.  If a party to this Agreement breaches any term of this Agreement, then the other party shall be entitled to recover all expenses of whatever form or nature, costs and attorneys' fees reasonably incurred to enforce the terms of this Agreement, including such costs or fees as may be awarded in arbitration or by a court at trial or on appeal.  In addition, in the event either party to this Agreement becomes a debtor subject to the United States Bankruptcy Code, the non-debtor party shall be entitled to recover any expenses, costs and fees, including attorneys' fees, incurred in connection with enforcing its rights against the debtor party, whether those rights arise under this contract or involve matters arising solely under the Bankruptcy Code.

15. Non-Waiver.  The failure or delay of any party to require performance of, or to otherwise enforce, any condition or other provision of this Agreement shall not waive or otherwise limit that party's right to enforce, or pursue remedies for the breach of, any such provision or condition.  Any waiver by any party of any particular condition or provision of this Agreement, including this non-waiver provision, shall not constitute a waiver or limitation on that party's right to enforce performance of, or pursue remedies for the breach of, any other condition or provision of this Agreement.

16. Successor Interests.  This Agreement is not assignable or transferable by Licensee without the express written consent of ESHA.  Subject to this restriction, this Agreement is binding upon and shall inure to the benefit of the heirs, successors, assigns, bankruptcy estates, administrators, personal representatives, and executors of each of the parties.

17. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon, without regard to or application of Oregon's conflict of law provisions, and by applicable federal copyright law.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

18. Jurisdiction/Venue.  The parties agree that any suit, action or arbitration proceeding arising out of or relating to this Agreement shall be brought in Multnomah County, Oregon, and the parties expressly consent to the personal jurisdiction over them of any state or federal court in Multnomah County, Oregon.

19. Paragraph Headings.  All paragraph headings in this Agreement appear for convenience of reference, and shall not affect the meaning or interpretation of the Agreement.

20. Amendments.  This Agreement may be amended or modified only by a written instrument executed by the parties which expressly states the intent of the parties to modify or amend this Agreement.

21. Entire Agreement.  This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of the Agreement and supersedes all prior discussions, negotiations, understandings, representations and agreements, whether oral or written, pertaining to the subject matter of this Agreement. Terms contained in any purchase order or other document used by Licensee in connection with this transaction, to the extent they differ from or add to the terms of this Agreement, shall be void unless expressly agreed to in writing by ESHA.  All terms of this Agreement are contractual and not mere recitals.

22. Electronic Execution.  Execution of this Agreement shall occur and may be evidenced by transmission of Licensee's electronic assent to its terms.  The party executing this Agreement hereby warrants that he or she is either the individual entering into this Agreement or is the authorized officer or principal of the Licensee installing or accessing the Licensed Materials.
