BIOEXSYSTEMS LICENSE AGREEMENT
(WEB BASED PROGRAM)
“Web Site” is defined as the Total PT Fitness web site operated by Bioexsystems. This Agreement (the “Agreement”) governs your use of the Web Site as an individual medical, physical therapy or fitness professional (a “Professional”) or as the Client of a Professional receiving therapy or training instruction (a “Client”). You may not access or use the Web Site unless you agree with this Agreement. Persons who are neither a Professional nor a Client are not authorized to use the Web Site. Bioexsystems means BioEx Systems Inc., a Delaware corporation.
Subject to the terms and conditions of this Agreement and the payment of all fees and charges at then prevailing rates, you are granted a revocable, limited, non-exclusive, non-transferable license to access and use the Web Site. Your use of access identification and a password is limited to the one individual to whom they are issued. If you are a Professional and are allowed access on that basis you may permit access to your Clients to the Client accessible portions of the Web Site. If you are a Client you agree that your access is limited to the Client accessible portions of the Web Site and to use the access solely for the purpose designated by the Professional. Licenses are only issued on an individual basis and are not transferable even among individuals employed by the same entity. Once assigned the license is deemed to belong to employee and may not be reassigned so long as the employee remains employed by the entity. For purposes of the preceding provisions regularly used independent contractors, partners, officers and other persons who may not be technically designated as employees shall be deemed to be “employees”.
Bioexsystems operates the Web Site on a subscription fee for service basis. Only Professionals who have paid the required fees are entitled to use the service. Clients will be able to access the Web Site only with permission from their Professional and will no longer have access if that Professional’s subscription lapses or is terminated. To subscribe individuals must be at least 18 years of age to assume the responsibilities of this Agreement. Minors may use the services as Clients only with the consent of their parents, which may be provided to a participating Professional. You should refer to www.totalptfitness.com for current pricing and subscription options. Subscriptions are offered on a monthly and yearly basis. At the end of each period the license and the related obligation to pay will automatically renew for an additional period, unless you specifically cancel the renewal prior to commencement of the renewal period. Cancellation can be accomplished through your account at the Web Site. Access will continue indefinitely until terminated by you or by Bioexsystems. If you make payment with a credit or charge card, you specifically authorize Bioexsystems to make periodic charges as required by your subscription. You agree to extend or to provide a new credit card if the card on file with Bioexsystems expires and charges continue. Bioexsystems reserves the right to increase or implement new fees or charges from time to time and agrees to give you not less than 30 days written notice to your email address on file with Bioexsystems, if it intends to do this. No increase or implementation of new fees or charges shall affect previously prepaid subscriptions until those subscriptions expire. Bioexsystems may charge a late payment fee for any amounts not paid within 10 days of the due date in the amount of the lesser of (i) 1.0% of the outstanding overdue amount per month or (ii) the maximum amount permitted by law.
(3) Student Particpation
From time to time Bioexsystems may afford Web Site access to medical, chiropractic, physical therapy or fitness students to use the Web Site in connection with their student work and training. When this occurs output from the Web Site will be marked with a designation indicating that a student has caused the output to be produced. Student Web Site access is not to be used by any persons other than students receiving appropriate training under the guidance of a trained Professional.
You agree not to
- Upload through any means any viruses, computer code or other programs or data designed to interfere with or destroy any computer programs associated with the Web Site or to damage any hardware used to operate the Web Site;
- Attempt to circumvent any security features of the Web Site;
- Allow access to the Web Site to persons who are not actual Clients receiving services at the time of access from the Professional who provides the access;
- Use the Web Site for any other purpose than specifically authorized in the Web Site;
- Remove any trade names, trademarks, copyright notices or other similar labels on content generated from the Web Site;
- Enable others to use your identification or passwords;
- Post or provide any obscene, defamatory, threatening, unlawful or otherwise objectionable content;
- Impersonate any other person; or
- Violate any procedure or policy of any internet or other equipment provider associated with the Web Site.
The Web Site includes trademarks, copyrighted works, trade secrets and other intellectual property of Bioexsystems and of third parties, and you may not decompile, reverse engineer, disassemble or otherwise reduce the Web Site to human-perceivable form or disclose trade secrets or disable the functionality which limits the use of the Web Site. You may not attempt to modify, adapt, translate rent, sublicense, assign, loan, resell for profit, distribute or network the Web Site or related materials or create derivative works based on all or any portion of the Web Site or any part thereof. You may not use any graphics or other copyrighted materials appearing on the Web Site, excepting only the printable exercise instructions and diagrams and videos which can only be used as instructed by a Professional. These restrictions may be modified only by a written agreement signed by you and by an authorized representative of Bioexsystems.
(5) Password Security
Each Professional and Client is solely responsible for his or her own password and identification. Bioexsystems is not responsible for lost stolen or other misused passwords and identification. You should promptly notify a Bioexsystems representative if your identification and passwords are lost, stolen or otherwise compromised and Bioexsystems will reissue new identification and or passwords, if your account with Bioexsystems is in good standing.
(6) Modification and Termination
Bioexsystems reserves the right to change the terms of this Agreement and to modify the Web Site to add, change or eliminate features. All changes shall be effective from and after the date they appear or are posted to the Web Site. If any future changes are not acceptable, you should cease using the Web Site. Bioexsystems reserves the right to revoke any license and to cancel any and all related passwords, if either the Professional or its Client fails to pay required fees or to comply with any other provision of this Agreement. You may terminate your subscription at any time. Any prepaid or other fees will not be refunded in the case of any termination of a subscription. If a Professional’s subscription lapses or is terminated for any reason that Professional’s Clients will no longer have access to their exercise programs or to any other feature of the Web Site.
(7) Warranty Disclaimer
THE WEB SITE AND ITS CONTENT ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIOEXSYSTEMS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR THEIR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BIOEXSYSTEMS DOES NOT WARRANT THAT THE WEB SITE IS SECURE OR FREE FROM BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS, INCLUDING BUT NOT LIMITED TO ACCURATE THIRD-PARTY CONTENT, OR THAT SUCH LIMITATIONS WILL BE CORRECTED WHEN DISCOVERED. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. SO THE THOSE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED TO SIXTY (60) DAYS FROM THE DATE A PROFESSIONAL PURCHASES ACCESS TO THE WEB SITE AND RECEIVES ITS FIRST IDENTIFICATION AND PASSWORD. HOWEVER, SOME STATES DO NOT ALLOW LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS. SO THIS LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY FROM STATE TO STATE. WARRANTIES, IF ANY, ARE LIMITED TO PROFESSIONALS AND BIOEXSYSTEMS ASSUMES NO RESPONSIBILITY OF ANY KIND TO CLIENTS BROUGHT TO THE WEB SITE BY PROFESSIONALS. CLIENTS WARRANTIES, IF APPLICABLE AT ALL, SHOULD BE OBTAINED FROM THE PROFESSIONAL WITH WHOM THEY ARE IDENTIFIED. THE WEB SITE AND RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT BIOEXSYSTEMS AND ITS AFFILIATES AND REPRESENTATIVES ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING, MEDICAL, NUTRITIONAL OR OTHER PROFESSIONAL SERVICES. IF YOU ARE A CLIENT AND LEGAL, MEDICAL OR OTHER PROFESSIONAL ADVICE IS REQUIRED YOU SHOULD SEEK THE SERVICES OF SUCH A PERSON. PROFESSIONALS AND CLIENTS ALIKE ARE SOLELY RESPONSIBLE FOR ENSURING THAT THEIR USE OF THE WEB SITE OR ITS CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. THERE IS NO WARRANTY THAT ACCESS TO THE WEB SITE WILL BE UNINTERUPTED. BIOEXSYSTEMS EXPRESSLY DISCLAIMS ANY WARRANTY CONCERNING INTERNET OR OTHER SERVICES THAT ARE OUTSIDE BIOEXSYSTEMS’ CONTROL. IF A CLIENT EXPERIENCES ANY PAIN, DIZZYNESS OR OTHER ADVERSE SYMPTOM, THE CLIENT SHOULD IMMEDIATELY CEASE THE ACTIVITY AND SEEK ADVICE FROM A QUALIFIED MEDICAL PROFESSIONAL.
(8) Limitation of Liability and Damages
THE ENTIRE LIABILITY OF BIOEXSYSTEMS FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT A PROFESSIONAL PAID TO BIOEXSYSTEMS FOR ACCESS TO THE WEB SITE WITHIN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT ALLEGED TO HAVE CAUSED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BIOEXSYSTEMS AND ITS REPRESENTATIVES ARE NOT LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO: DAMAGES OR LOSS OF BUSINESS, LOSS OF PROFITS AND THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BIOEXSYSTEMS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BIOEXSYSTEMS AND ITS REPRESENTATIVES TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT A PROFESSIONAL PAID TO BIOEXSYSTEMS FOR ACCESS TO THE WEB SITE WITHIN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT ALLEGED TO HAVE CAUSED DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIOEXSYSTEMS AND ANY PROFESSIONAL PURCHASING ACCESS TO THE SITE AND ANY CLIENT OF A PROFESSIONAL EXPRESSLY ACKNOWLEDGES THIS ARRANGEMENT AND AGREES IT WILL LOOK SOLEY TO HIS OR HER PROFESSIONAL FOR ANY DAMAGES SHOULD THEY ARISE. BIOEXSYSTEMS WOULD NOT HAVE BEEN ABLE TO PROVIDE THE WEB SITE TO PROFESSIONALS OR CLIENTS WITHOUT THESE LIMITATIONS.
Bioexsystems privacy policies are set forth at its Web Site. Please refer to http://www.bioexsystems.com. You agree to be bound by those policies, insofar as they apply to the Web Site.
(10) Data and Data Destruction
You agree that Bioexsystems and persons supplying maintenance, web hosting and other services will have access to all data supplied by you as a Professional or Client solely for the purpose operating, updating, maintaining, testing or otherwise improving the Web Site. The Web Site, all underlying programs and any data supplied by Bioexsystems shall remain the property of Bioexsystems and its suppliers. Data supplied by a Professional and its Clients shall remain the Professional’s property but Bioexsystems shall have a limited license to use the data as previously indicated in this paragraph. Bioexsystems will store your data and shall use the same backup procedures for your data as it uses for its own data. In the event of a failure that causes loss of data, Bioexsystems sole responsibility shall be to restore the data from the latest backup on its system. Bioexsystems will archive data for five years and thereafter may from time to time destroy any archived data, unless it has received a prior notice to transfer data to the Professional owning the data, in which event it will delay destruction until the data is properly transferred.
(11) User Provided Data
From time to time Professionals may upload exercise training and other data that does not include personally identifiable information or any specific information concerning the health of a Client. Bioexsystems shall have the right to access this data and to use it in whatever manner it deems appropriate, including, without limitation, as guidance for the incorporation of additional exercises or routines.
(12) Force Majeure
Neither Bioexsystems nor you shall be responsible for any delay, interruption of service or failure of performance caused by any force reasonably beyond control, including, without limitation, any war, civil strife, act of terrorism, earthquake, fire, tornado, hurricane, power shortage, utility outage, communication outage, strike or Act of God. The time for performance of any action delayed by such events shall be correspondingly delayed for the period of the delay plus a reasonable period for restoration.
(13) Links to Other Sites
From time to time you may have the ability to access other web sites operated by unrelated third parties to acquire additional information or to purchase items referenced at the Web Site. Bioexsystems disclaims any responsibility for the content or privacy of these sites and makes no representations or warranties concerning these sites whatsoever. If you make any purchase from a linked site all aspects of your purchase will be solely between you and the merchant operating the site and Bioexsystems will have no involvement. Your rights and remedies with respect to a particular purchase will be solely against the merchant, and any questions, complaints, and claims related to a product should be directed to that merchant.
(14) General Provisions
This Agreement sets forth Bioexsystems’ and its representatives’ entire liability and your exclusive remedy with respect to use of the Web Site. This is the entire agreement relating to the Web Site between you and Bioexsystems. It may be amended only by an agreement in writing signed by an authorized representative of Bioexsystems or by Bioexsystems posting a revised Agreement at the Web Site (in which event the new terms will apply only from and after the date of posting). This Agreement does not limit any rights that Bioexsystems may have under trade secret, copyright, trademark or other laws. Should a court determine that any provision of this Agreement is unenforceable, the remaining provisions shall be severable and shall remain in full force and effect, and the court shall be instructed to enforce the Agreement to the maximum extent permissible to effect the original intent of the Agreement. The Agreement may be executed in one or more counterparts and may be entirely in electronic form. Electronic terms, conditions, signatures and deliveries created or effected by pressing the accept button, by email, by facsimile transmission or by any other means permitted under Texas law and/or under the federal law contained in 15 U.S.C. §§7001 et seq. shall be binding and effective in all respects. The validity and enforceability of this Agreement shall be governed by Texas law (without reference to choice of law principles), except as to copyright, trademark and other issues that are specifically governed by federal laws.
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