FitHive provides certain Services relating to the implementation, development, transmission, analysis, and management of FitHive tools (the “Services”) through the website located at www.myfithive.com and such other sites as may be designated by FitHive (each, the “Site” or collectively, the “Sites”). All access to and use of the Services available through the Site are subject to the terms of this Agreement. If you wish to access and use the publicly available portions of the Services and the Site, you may do so only in compliance with this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE YOU (1) HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) IF AN INDIVIDUAL, ARE 18 YEARS OR OLDER; IF AN ENTITY, ARE AUTHORIZED TO SIGN ON BEHALF OF THAT ENTITY; AND (3) MEET THE OTHER QUALIFICATIONS SET FORTH IN THIS AGREEMENT.
This Agreement is entered into as of the first of either the date you first sign a Proposal for FitHive Services or the date you first access or use the Services or the Site, whichever occurs sooner (the “Effective Date”). This Agreement consists of the following terms and conditions accepted by you and FitHive, each of which is incorporated in and made a part of this Agreement.
FitHive SMS/Text Policy
Members may send up to 500 texts per month through the FitHive platform free of charge. When a Member exceeds 500 texts in a month, each additional text will be charged at 4 cents.
By sending texts/SMS messages through FitHive, Members agree to abide by FitHive’s SMS/text Policy. FITHIVE MAY SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE SERVICES IF YOU DO NOT COMPLY WITH THIS POLICY. The following activity is prohibited for any Member of FitHive SMS/text Services:
-Using the FitHive Services for any illegal, fraudulent, abusive, or other activities that materially interfere with the business or activities of FitHive.
-Attempting to bypass or break any security mechanism on any of the FitHive Services or using the FitHive Services in any other manner that poses a material security or service risk to FitHive or any of its other customers.
-Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the FitHive Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the FitHive Services.
-Transmitting any material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs.
-Using the FitHive Services in any manner that causes a telecommunications provider to complain about your use to FitHive or materially violates the following: (a) industry standards, policies and applicable guidelines published by (i) the CTIA (Cellular Telecommunications Industry Association), (ii) the Mobile Marketing Association, (iii) the FTC, or (iv) any other generally recognized industry associations; (b) telecommunications provider guidelines and usage requirements as communicated in writing by FitHive to you.
-Anti-SPAM: Engaging in any unsolicited advertising, marketing or other activities prohibited by applicable law or regulation covering anti-spam, data protection, or privacy legislation in any applicable jurisdiction, including, but not limited to anti-spam laws and regulations such as the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
-Using the FitHive Services in connection with unsolicited, unwanted, or harassing communications (commercial or otherwise), including, but not limited to, phone calls, SMS messages, video.
-Using the FitHive Services to harvest or otherwise collect information about individuals, including email addresses or phone numbers, without their explicit consent or under false pretenses.
-Using the FitHive Services to engage in, or in connection with fraudulent activity.
-Reverse-engineering the FitHive Services in order to find limitations, vulnerabilities, or evade filtering capabilities.
-Using the FitHive Services to receive, send or otherwise process Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, unless you have signed a Business Associate Agreement with FitHive or your use of the FitHive Services fits within the “conduit” or some other exception for requiring a Business Associate Agreement.
-Violating or facilitating the violation of any local, state, federal, or foreign law or regulation, including, but not limited to, laws and regulations regarding the transmission of data or software and recording of phone calls and communications.
-Using the FitHive Services in a manner that triggers a law enforcement, government, or regulatory agency to request the suspension of the FitHive Services to you and/or your phone numbers.
-Using the FitHive Services to transmit any material that infringes the intellectual property rights or other rights of third parties.
-Using the FitHive Services to transmit any material that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech, and any other material that FitHive reasonably believes degrades, intimidates, incites violence against, or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category.
-Using the FitHive Services to transmit any material or content that is offensive, inappropriate, pornographic, obscene, illegal, or otherwise objectionable to any person or entity.
-Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
It is a violation of our SMS/text Policy to use our services in a way that produces complaints from our telecommunications providers or law enforcement, government, or regulatory agencies.
Phone Number Reclamation - All phone numbers are subject to rules and restrictions imposed by telecommunications providers. In order to comply with such rules and restrictions, FitHive may, at its sole discretion, reclaim your phone numbers that do not have adequate usage, as determined by such telecommunications providers. FitHive, however, will use commercially reasonable efforts to (a) provide notice to you prior to any phone number reclamation and (b) to work with telecommunications providers to prevent the reclamation of any phone numbers.
FitHive Email Policy
FitHive’s Email Policy applies to all email and other communications created or sent through the services provided by FitHive, whether through the Site located at www.myFitHive.com or through any other site operated by FitHive or a FitHive reseller, distributor, or business partner by an individual who has registered to use FitHive services. BY GENERATING OR SENDING EMAIL THROUGH FITHIVE, USERS AGREE TO COMPLY WITH THIS POLICY. FITHIVE MAY SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE SERVICES IF YOU DO NOT COMPLY WITH THIS POLICY.
Members may send up to 5,000 emails per month through the FitHive platform free of charge. When a Member sends between 5,000 and 10,000 emails in a month, they will be charged a flat fee of $25. When a Member sends more than 10,000 emails in a month, they will be charged a flat fee of $100.
Your use of the Services must comply with all applicable laws. This includes laws applicable to you and also laws applicable to FitHive and the recipient of each Email. Examples of applicable laws include laws relating to spam or unsolicited commercial email (“UCE”), privacy, security, obscenity, defamation, intellectual property, pornography, terrorism, homeland security, gambling, child protection, and other applicable laws. It is your responsibility to know and understand the laws applicable to your use of the Services and the Emails you generate and send through the Services.
It is the Member’s responsibility to read and understand the ToU applicable to your use of the Services and the Emails you generate and send through the Services.
Sensitive Data will not be provided to FitHive at any time. You will not provide FitHive with any Sensitive Data, as defined in the ToU, including information regarding an individual’s medical or health condition, race or ethnic origin, political opinions, religious or philosophical beliefs or other sensitive data. It is Your responsibility to read and understand your obligations in relation to Sensitive Data.
Your use of the Services must follow all applicable guidelines established by FitHive .The guidelines below are examples of practices that may violate this Policy when generating or sending Emails through FitHive:
- Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from you by affirmatively opting-in to receive those Emails);
- Using purchased or rented Email lists;
- Using third party email addresses, domain names, or mail servers without proper permission;
- Sending of Emails to non-specific addresses (e.g., firstname.lastname@example.org or email@example.com);
- Sending of Emails that result in spam or UCE complaints (even if the Emails themselves are not actually spam or UCE);
- Failure to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from your mailing list;
- Failure to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request;
- Obscuration of the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email;
- Failure to include in each Email your valid physical mailing address or a link to that information; and
- Inclusion of junk mail, chain letters, pyramid schemes, incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
If you know of or suspect any violations of this Policy, please notify FitHive at kira@myFitHive.com. FitHive will determine compliance with this Policy in its sole discretion.
Changes to this Agreement. FitHive reserves the right, at any time, to change or modify this Agreement by making such change or modification available on www.myfithive.com or by providing emailed notice to the Member. Any such change or modification will be effective 30 days after posting on the Site or such emailed notice. As applicable, you will be deemed to have agreed to such change or modification of this Agreement through your continued use of the Site or Services.
Changes to the Site and Services. The features and functions of the Service, including the APIs, may change over time. It is the Member's responsibility to ensure that calls or requests made to the Service are compatible with then-current APIs. Although FitHive endeavors to avoid changes to the APIs that are not backwards compatible, if any such changes become necessary, FitHive will use commercially reasonable efforts to notify Member at least 30 days prior to implementation. Notwithstanding the foregoing, Member understands that FitHive may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
Term. If you have ordered a subscription to FitHive Services, then the term of this Agreement will commence on the Effective Date of the signed Proposal and continue until cancelled by either the Member or FitHive. The subscription will automatically renew unless terminated as set forth herein. The Term will continue to renew until you notify FitHive that you do not wish to renew the Agreement at least 10 days prior to the end of the then-current Term. In all other cases, the Term will continue until terminated as set forth herein.
Subscription; Member Service. During the Term, FitHive will provide you with a subscription to access and use the Services subject to the terms of this Agreement, solely for your own use in connection with your own business purposes and not for resale, lease, license or sublicense; provided, however, if you, as an integrated software technology provider or otherwise, desire to integrate the Service into any of the services offered by you and/or provide the Service to your customers and potential customers (“Members”) as an integrated part of your business, including allowing Members to send data, information or other content using the Service (the “Member Service”), you will also be subject to the Member terms and conditions set forth below. Subject to the foregoing proviso, your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable.
Access to the Services. Upon the launch of your Hive, you will be granted access to the Services using the username and password applicable to your Account (each such username and password, an “Account ID”). Each Account ID is personal in nature and may be used only by you or, if you are an organization, by designated employees within your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “Member” of the Account). You are solely responsible for all use of the Services by each Member and for compliance by each Member with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify FitHive immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that the Member is solely responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by you. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each Member to connect to, access, and use the Services and the Sites.
Applicable Policies. In addition to the terms of this Agreement, your access to and use of the Site and Services are subject to FitHive’s then-current policies relating to the Site and Services, including, without limitation.
Software. Software or code available on or for download through the Site or Services (“Software”), if any, are protected by IPR (as defined below). Unless otherwise expressly stated in a license or other agreement separate from this Agreement that you may have entered into (or may enter into) with FitHive relating to any Software (each such license or other agreement, a “Software License Agreement”), FitHive grants you a limited, non-exclusive right and license to download, install and execute the Software in accordance with the instructions provided on the Site and solely for your own business purposes in connection with your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and you may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of FitHive. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
Rebranding/Purchase of New Domain/Domain Change. There will be a $500 charge to acquire/change a Member’s Domain, or update the Member’s website with a new brand provided by the Member. If rebranding is unnecessary, then domain name change will be billed at $25, but Member is responsible for updating their Hive to reflect the new brand.
Add-ons. FitHive may make available through the Services additional optional, non-essential features, functionality and services (“Add-ons“) offered by third-party partners (each, an “Add-on Partner”). Your use of Add-ons is subject to this Agreement and any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to the Add-on directly with the applicable Add-on Partner (each, an “Add-on Service Agreement”). Except as set forth in this Agreement, the terms of any Add-on Service Agreement will control in the event of a conflict between the terms of this Agreement and such Add-on Service Agreement. Add-ons may be subject to additional Fees as set forth on the Site or Confirmation. You acknowledge FitHive is not a party to the Add-on Service Agreement between You and the Add-on Partner with respect to that Add-on, and the Add-on Partner of each Add-on is solely responsible for that Add-on, the content therein and any claims that You or any other party may have relating to that Add-on or Your use of that Add-on. By purchasing an Add-on, You give consent for FitHive to share Your Content and user information with the Add-on Partner as necessary in order to provide You with the Add-on. The license granted to You to use any Add-on is personal to You, and is not sublicensable or transferrable to Your end users, including any Member. You will not provide or resell Add-ons to others. Notwithstanding the terms of any Add-on Service Agreement, FitHive may change, modify or discontinue any Add-on at any time and without notice to You, subject to any continuing rights You may have under the Add-on Service Agreement.
Restrictions. You acknowledge the Services, Sites, Software, and the databases, hardware and other technology used by or on behalf of FitHive to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of FitHive. You will not, and will not permit any third party (including any Member, as applicable) to: (a) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (b) use the Site, Services or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (c) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (d) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (e) use the Site, Services or any Software to intimidate or harass any other people or entities; (f) alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (h) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; (i) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software; or (j) use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). FitHive does not intend uses of the Service to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar Laws (as defined below) and makes no representations that the Service satisfies the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Service for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). You will not allow any access to or use of the Services by anyone other than Your authorized Members or Members (as applicable), and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
Fees and Payment.
Fees. You agree to pay FitHive all fees set forth in each Proposal and any fees otherwise specified on the Site (“Fees”). All Fees will be billed as indicated in each Proposal. Unless FitHive and you expressly agree otherwise in writing, all Fees are payable in United States dollars. You will be responsible for any applicable use, sales, or other taxes imposed on the Services in accordance with Federal and State law. FitHive may change any portion of the Fees by posting the changes to the Sites or otherwise notifying you through the Services of the change, such changes to take effect at the beginning of the next Renewal Term.
Payment Terms. The initial payment of Fees specified in the Proposal for each period in the subscription will be due and payable five weeks after the Member signs a Proposal with FitHive, or on the date the Member's Hive is launched (Launch Date), whichever comes first. Unless alternate arrangements are agreed upon by the Member and FitHive management prior to commencement of the Member’s subscription, all Members will provide a credit or debit card to be billed for each new period. Members grant FitHive the right to charge the credit card or debit the bank account provided to FitHive for all Fees incurred under this Agreement.
Failed Payments. In the event that your designated card is declined, FitHive will attempt to collect payment every few days up to a total of five times. After 5 consecutive failed attempts, your subscription may be suspended and your Hive, including access to the Services at www.myfithive.com and the website and App provided to you with your FitHive subscription, may be temporarily deactivated until payment is received.
Cancellation/Refunds. Members may cancel their FitHive subscription at any time by providing written notice to FitHive management at least 10 days prior to their next scheduled payment date. While FitHive does not charge a cancellation fee, Members who cancel their FitHive subscription prior to their first payment will be billed a Fee of one month’s subscription, at the rate specified in their Proposal, in lieu of an onboarding fee. Except as expressly set forth herein or agreed to in writing with FitHive, all payments and Fees will be non-refundable once paid to FitHive, including upon any termination or suspension of this Agreement.
Fee Disputes. In the event you dispute any portion of the Fees paid or payable by You under this Agreement, You must provide written notice to FitHive within 30 days of the invoice and the parties will work together to resolve the applicable dispute promptly. If you do not provide written notice of your fee dispute within such 30-day period, You will not be entitled to dispute any Fees paid or payable.
Termination and Suspension.
Termination. This Agreement may be terminated by FitHive, at any time, in FitHive’s sole discretion, upon any breach by Member of this Agreement that remains unresolved 10 days after FitHive delivers written notice to you of such breach.
Suspension. Without limiting FitHive’s right to terminate this Agreement, FitHive may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to Member, upon any actual, threatened or suspected breach of this Agreement or upon any other conduct deemed inappropriate or detrimental to the Services by FitHive including, but not limited to, rogue script, bad send and unauthorized takeover or other malicious activity on your Account.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) all rights and subscriptions granted to you under this Agreement will terminate; (ii) you will immediately cease all use of and access to the Sites and Services; (iii) all Fees then owed by You will become immediately due and payable; (iv) You will immediately either return to FitHive or, at FitHive’s discretion, destroy the FitHive Confidential Information in your possession or control; and (v) FitHive shall delete any of your Content held by FitHive in accordance with FitHive’s then-current data retention policy. The following sections of this Agreement will survive any expiration or termination of this Agreement: Applicable Policies, Add-ons, Restrictions, Fees and Payment, Termination and Suspension – Effect of Termination, Ownership of IPR, Content – Service Data, Content – Customer Feedback, Warranties and Disclaimer – Disclaimer, Indemnity – By You, Limitations on Liability, Data Privacy, Confidentiality, Disputes, Governing Law, General and Use of the Services by Members.
Ownership of IPR.
By FitHive. FitHive retains all right, title and interest, including, without limitation, all IPR in and to the Sites, Services, Technology, FitHive Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The FitHive name, logo and the product and service names associated with the Services are trademarks of FitHive (or its third party providers), and no right or license is granted to you to use them.
By Member. You retain all right, title and interest, including, without limitation, all IPR in and to your products and services and your Content (as defined below) and any additions, improvements, updates, and modifications thereto. FitHive acknowledges that it is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to FitHive to use them, except as expressly set forth herein.
FitHive Content. FitHive provides you with access to certain data, information and other content through the Site and Services (“FitHive Content”). Subject to this Agreement, each Member and Member (as applicable) may: (i) access the FitHive Content solely for Your own business purposes in connection with the use of the Services; and (ii) distribute the FitHive Content as incorporated into emails generated and sent by You or any Member (as applicable) through the Services. Except as expressly provided in this Agreement, You will not, and will not permit any Member or Member (as applicable) to alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the FitHive Content. Certain of the FitHive Content includes or is based on data, information and content from independent third party providers (“Third Party Content”). FitHive uses commercially reasonable measures to ensure that the Third Party Content is reliable, but FitHive has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
Member Content. You will be solely responsible for all data, information and other content provided by, or collected or obtained from, you or any of your Members or Members (as applicable) through the Services, including, without limitation, all personal data relating to you or any of your Members, customers, Members, service providers, employees, contractors or agents (“your Content”). you, on behalf of yourself and each Member (as applicable), grant to FitHive all necessary rights and licenses in and to your Content necessary for FitHive to provide, optimize and maintain the Services, to manage the FitHive platform, system administration and security, comply with applicable Laws, and to investigate and prevent system abuse or fraud, unauthorized access to or use of the Services, breaches of this Agreement or applicable policies, and other wrongful behavior. As between you and FitHive, you retain all of your rights in and to your Content and do not convey any proprietary interest therein to FitHive other than the licenses set forth herein. You will maintain an adequate back-up of all your Content and FitHive will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of your Content. FitHive may take remedial action if any of your Content violates this Agreement, provided that FitHive is under no obligation to review any of Your Content for accuracy or potential liability.
Member will be responsible for all data, information and other content provided by Member in connection with the services provided under this Agreement. Member will not provide and will not permit any third party to provide or to use the services provided under this Agreement to provide, any Content that: (a) infringes, misappropriates or violates any intellectual property or other rights of any third-party; (b) is defamatory, harmful to minors, obscene or child pornographic; (c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; (d) is false, misleading or inaccurate; or (e) constitutes Sensitive Data. For the purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name or (ix) or any other information that falls within the definition of “special categories of data” under EU General Data Protection Regulation 2016/679 (“GDPR“), or any other applicable law relating to privacy and data protection. Member will not use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). Member and its Third Party Providers do not intend uses of the Third Party Services to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar laws and makes no representations that such Third Party Services satisfy the requirements of such laws. If Member is (or becomes) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), Member agrees not to use the Third Party Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). Member acknowledges that email is an insecure medium that is generally not encrypted in transit, and security of information transmitted through the Internet can never be guaranteed. Member and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Content. Member and its Third Party Providers may take remedial action if any Content violates this Section, however Member and its Third Party Providers are under no obligation to review any Content for accuracy or potential liability.
License Grant. Member grants to Member and its Third Party Providers all necessary rights and licenses in and to all Content necessary for Member and its Third Party Providers to provide the services under this Agreement. Member will maintain an adequate back-up of all Content and Member and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of any Content. Member represents and warrants that Member has all necessary right, title, interest and consent necessary to allow Member and its Third Party Providers to use all Content as set forth in this Agreement and as otherwise necessary to provide the services under this Agreement.
Sensitive Data. Sensitive Data (as defined below) will not be provided to FitHive at any time and FitHive will have no liability whatsoever for Sensitive Data, whether in connection with a security incident or otherwise. For purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name, or (ix) any other information that falls within the definition of “special categories of data” under GDPR, or any other applicable law relating to privacy and data protection.
Customer Feedback. If you or any Member provides FitHive feedback or suggestions about the Service, FitHive may use that information without obligation to you or such Member, and you, on behalf of yourself and each Member, hereby irrevocably assigns to FitHive all right, title, and interest in such feedback or suggestions.
Members may provide personal information to us through the Services – for example, when you create a FitHive account, use the Services to send emails or other communications, contact customer support, send us an email, or communicate with Us in any other way. When setting up a FitHive account, you will be asked to provide certain basic information such as a name, email address, username, password, company name, occupation, location and phone number (e.g. if You are using two-factor authentication). If You purchase one of our paid plans, you may also need to provide us with payment and billing information such as the Member’s credit card details and billing address.
As a Client, FitHive will also maintain a record of your purchases, transactional information, Services history and usage, and any communications and responses.
When you use FitHive Services, we may collect certain information automatically about your device and your use of the Services. This will include IP addresses, browser types, log files, and other information regarding your system and connection. We collect information about how you access and use the Services, such as what pages are viewed and what portions of the Services are used. We also collection information regarding the performance of the Services, including metrics related to the deliverability of emails and other electronic communications you send through the FitHive platform. This information allows us to improve the content and operation of the Services, and facilitate research and analysis of the Services. Please be aware that we use web beacons in our emails to recipients delivered using the FitHive platform. These web beacons track certain behavior such as whether the email sent through the FitHive platform was delivered, opened, clicked on, whether it bounced or was treated as spam. This allows us to measure the performance of our Member’s email campaigns, and to provide analytics information and enhance the effectiveness of our Services. We collect this information automatically through the use of various commonly used information-gathering technologies including cookies and web beacons, to collect information as users and Visitors navigate the Website and use the Services (“Web Site Navigational Information”). We use these technologies to analyze trends, administer Web sites and Services, track users’ and Visitors’ movements around our Site and Services, serve targeted advertisements and gather demographic information about our user and visitor base as a whole.
FitHive Members may also input or upload certain personal information to the FitHive platform which we will process as a data processor on our Members’ behalf. For example, when our Members utilize the email delivery platform to upload contact information relating to their email recipients, other personal information about recipients, or upload contents of email communications, or create marketing campaigns, We will act as a data processor and only process such information on our Member’s behalf and in accordance with their instructions. We will use such personal information to: provide and deliver the Services to the Member, prevent or address any service or technical issues, respond to a Member’s request, instructions or support request, or for any other purpose provided for in the Member agreement, or in accordance with or as may be required by law.
In such cases, it is the Member (or, as the case may be, other third parties) who remain responsible for the handling of the personal information and with compliance with any applicable data privacy laws. If you have questions or concerns about how such personal information is handled, you should contact the relevant entity that is using the Services, and refer to their separate privacy policies.
Warranties and Disclaimer.
By FitHive. FitHive represents and warrants to you that FitHive will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. FitHive’s sole obligation and your sole and exclusive remedy in the event of any failure by FitHive to comply with the foregoing sentence will be for FitHive to, at FitHive’s option, re-perform the affected Services or refund to you the Fees You have actually paid for the affected Services during the month in which the failure occurred.
By Member. you hereby represent, warrant, and covenant for the benefit of FitHive that: (i) you have the legal right and authority to enter into this Agreement, and, if you are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (ii) you have the legal right and authority to perform your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (iii) Your Content, and any other data, information or content you or any Member (as applicable) provides to FitHive in connection with this Agreement and your and each Member’s (as applicable) access to the Site and use of the Services, is correct and current and does not or will not violate this Agreement; (iv) you have all necessary right, title, interest and consent necessary to allow FitHive to use your Content for the purposes for which you or any Member (as applicable) provides your Content to FitHive, including, without limitation, the delivery of any and all emails and other communications; (v) you will not and will not allow any Member or Member (as applicable) to export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (vi) you will not and will not allow any Member or Member (as applicable) to remove or export from the United States or allow the export or re-export of the Service (A) into (or to a national or resident of) any embargoed or terrorist-supporting country, (B) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (C) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (D) otherwise in violation of any export or import Laws; (vii) you are not and will ensure each Member and Member (as applicable) are not, located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (vi) immediately above (for more information, see the U.S. Department of Treasury website at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx); (viii) you will comply with, and will be responsible for each Member’s (as applicable) compliance with, any applicable international, federal, state or local treaties, laws, rules, regulations or ordinances (“Laws”) regarding your or the Members’ (as applicable) use of or access to the Site or Services or regarding Your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited; and (ix) if you will make the Service available Members as an integrated part of the Member Service, you (A) will not, without FitHive’s prior written approval, make any representation, warranty or guarantee to Member on behalf of FitHive concerning the Service and (B) will only offer the Service to any Members as an integrated part of the Member Service and not for resale without integration.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITES AND SERVICES (AND ALL FITHIVE CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND FitHive AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NEITHER THE SOFTWARE, THE SITES NOR THE SERVICES ARE DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES. NEITHER FitHive NOR ITS LICENSORS WARRANT THAT THE OPERATION OF THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FitHive, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES OF FitHive EXPRESSLY SET FORTH HEREIN.
By FitHive. FitHive will, at its expense, defend you against any claims brought against you by a third party that your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right. The foregoing obligations of FitHive under this Section (a) are conditioned upon you providing FitHive with: (i) notice of any such claim within 10 days after you receive written notice thereof; (ii) sole control over the defense and settlement of such claim; and (iii) reasonable assistance (at FitHive’s expense) in the defense and settlement of such claim. If you are, or FitHive reasonably believes you may be, enjoined from using the Services, FitHive, at FitHive’s option and expense, may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing, or provide You a refund of all pre-paid amounts applicable to such Services (if any) and terminate this Agreement with respect to such Services. This Section constitutes FitHive’s sole and exclusive liability, and your sole and exclusive remedy, for any third party claims under this Agreement.
By you. You hereby indemnify, defend, and hold harmless FitHive and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (the “FitHive Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any FitHive Indemnified Party arising from your or the Members (as applicable) accessing or using the Site, Services, Software, Your Content, FitHive Content, any email or other communication generated or sent through the Services or the Member Service (as applicable), or any breach of this Agreement. FitHive will provide You with notice of any such claim or allegation, and FitHive will have the right to participate in the defense of any such claim at its expense.
Limitations on Liability.
NO SPECIAL DAMAGES. IN NO EVENT WILL FITHIVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SOFTWARE, TECHNOLOGY, SERVICES (OR ANY FitHive CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
CUMULATIVE LIABILITY. FITHIVE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO FitHive HEREUNDER IN THE ONE MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, US$10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT FitHive WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FITHIVE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
SPECIAL LIMITATIONS. FOR THE PURPOSE OF CLARITY, FitHive WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (I) SENSITIVE DATA SENT TO FitHive; (II) VIOLATION OF ANY LAW BY FitHive WHEN ACTING AT YOUR OR ANY MEMBER’S (AS APPLICABLE) DIRECTION; OR (III) THE SENDING BY FitHive OF YOUR OR ANY Member’S (AS APPLICABLE) EMAILS, INCLUDING ANY CLAIMS AGAINST FitHive DUE TO YOUR OR ANY MEMBER’S (AS APPLICABLE) SENDING OR DATA COLLECTION PRACTICES OR YOUR CONTENT.
Definitions. For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or made available under this Agreement by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to the Technology, the provision or receipt of the Services, or the Disclosing Party’s technology, finances, operations, customers or business; provided, however, “Confidential Information” does not include (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Receiving Party or by any of the Receiving Party’s Representatives (as defined below); (ii) any information that was in the Receiving Party’s possession prior to the time it was first made available to the Receiving Party or any of the Receiving Party’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives, provided that the source of such information was not and is not known to the Receiving Party to be bound by any contractual or other obligation of confidentiality to the Receiving Party or to any other person with respect to any such information; (iii) any information that becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Receiving Party to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other person with respect to any of such information; or (iv) any information that is independently developed by the Receiving Party or any of the Receiving Party’s Representatives without the use of or reference to any of the Disclosing Party’s Confidential Information. For purposes of this Section, a party’s “Representatives” will be deemed to include each person or entity, as applicable, that is or becomes (A) a subsidiary or other affiliate of such party, (B) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. For the avoidance of doubt, (1) the Services, Technology, and FitHive Content are the Confidential Information of FitHive, (2) all data regarding Your email recipients and Members (as applicable), including without limitation, identities and email addresses are Your Confidential Information, and (3) Service Data will not be Your Confidential Information.
Confidentiality Obligations. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information with the degree of care the Receiving Party uses to protect its own confidential information of like nature, but in no case less than reasonable care. The Receiving Party agrees that, except as expressly directed by the Disclosing Party, it will not at any time during or after the Term: (i) disclose any Confidential Information to any third party (other than the Receiving Party’s Representatives); (ii) permit any third party (other than the Receiving Party’s Representatives) to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (iii) use any of the Confidential Information for any reason other than for the purposes of this Agreement. The Receiving Party may disclose Confidential Information to its Representatives having a need to receive the Confidential Information in the performance of their duties under this Agreement; provided, however, that such Representatives are informed of the confidentiality obligations hereunder and the Receiving Party is responsible for such Representatives’ compliance therewith. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information pursuant to any Law, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the Disclosing Party so long as such notice is not prohibited by Law. When permitted, the Receiving Party will provide notice to the Disclosing Party of such disclosure as soon as practicable so that the Disclosing Party has an opportunity to seek a protective order or take other efforts to modify or restrict the disclosure through legal means. The Receiving Party will reasonably cooperate in such efforts at the Disclosing Party’s reasonable expense. Each party has the discretion to accept service of any subpoena or other document request without a requirement for such party seeking such disclosure to comply with applicable rules of service. Each party acknowledges that its breach of this Section may cause irreparable damage to the other party and hereby agrees that the other party will be entitled to seek injunctive relief under this Section, as well as such further relief as may be granted by a court of competent jurisdiction. In the event of any conflict between the Privacy Policies and the provisions of this Section, the provisions of this Section shall control.
Claims of Infringement. Just as FitHive requires users of the Site to respect the IPR of FitHive, its affiliates, and other third parties, FitHive respects the IPR of Members of the Site and other third parties. If You believe in good faith that your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
1182 Center Dr., Ste. D160
Park City, UT 84098
Please provide the following information to FitHive’s Copyright Infringement Agent:
the identity of the infringed work, and of the allegedly infringing work;
Your name, address, daytime phone number, and email address, if available;
a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the Law;
a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and your electronic or physical signature.
Linked Sites. The Site and communications sent through the Services may contain links to third-party sites that are not under the control of FitHive, and FitHive is not responsible for any content on any linked site. If You access a third-party site from the Site or from a communication sent through the Services, then You do so at Your own risk. FitHive provides links only as a convenience, and the inclusion of the link does not imply that FitHive endorses or accepts any responsibility for the content on those third-party sites. FitHive welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by FitHive or any group or individual affiliated with FitHive. You will not (a) use on Your site any FitHive Content or IPR appearing on the Site in establishing the link; or (b) frame or otherwise incorporate into another site the FitHive Content IPR appearing on the Site without prior written consent.
Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section 24. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by FitHive in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
Governing Law. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Utah, U.S.A., as such laws apply to contracts between Utah residents performed entirely within Utah. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a federal court in the District of Utah, U.S.A., or in state court in Salt Lake City, Utah, U.S.A., and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts.
General. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of FitHive. Any assignment in violation of the foregoing will be null and void. FitHive may assign this Agreement to any party that assumes FitHive’s obligations hereunder. This Agreement does not confer any benefits on any third party unless it expressly states that it does. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. FitHive provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If You (or any of Your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Service was developed fully at private expense. FitHive may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the FitHive web site and for other marketing and promotional purposes relating to the Services.
Member Terms and Conditions. This section sets forth the terms and conditions upon which You will make the Service available to Members as an integrated part of the Member Service. The terms set forth in this section shall be in addition to, and not in lieu of, the terms set forth elsewhere in this Agreement.
Integration and Use of the FitHive Interface. FitHive will provide You with the right to integrate the Service into the Member Service through one or more interfaces for the Service designated by FitHive during the Term (each, a “FitHive Interface”) and offer the Service to Members as an integrated part of the Member Service. You will access the Service only through the FitHive Interfaces designated by FitHive, for purposes of integrating the Service into the Member Service.
Member Account. You will be provided with an administrative account to manage access to and use of the Service (the “Member Account”). The Member Account may be accessed and used only by You for purposes of (i) establishing and administering Member access to the Services and (ii) utilizing the Service to send email messages to Members in connection with Your business. You will be solely responsible for all use of the Member Account. You will ensure the security and confidentiality of all usernames and passwords associated with the Member Account and will notify FitHive immediately if any such information is lost, stolen or otherwise compromised. You will be fully responsible for all liabilities and damages incurred through use of the Member Account (whether lawful or unlawful). Any transactions completed through any Member Account will be deemed to have been completed by You. In no event will FitHive be liable for the foregoing obligations or the failure by You to fulfill such obligations.
Use of the Service by Members. Prior to allowing any Member to access or use any Member Service, including any portion of the Service, You will require that the Member become legally bound by an agreement covering the use of the Member Service with You (an “Member Agreement”). You will be responsible for preparing the Member Agreement. The Member Agreement will include terms consistent with Your rights and obligations under this Agreement and at least as protective of the Service and the interests of FitHive as those set forth Exhibit A hereto, but in no case less protective of the Service and the interests of FitHive than of the Member Service and Your interests in the Member Agreement. Upon request by FitHive, You will provide FitHive with a copy of the Member Agreement (including any prior versions thereof) and verify that each Member has agreed to be legally bound by the Member Agreement. You assume all responsibility and liability for the actions of all Members, including all use of or access to the Service by each Member or by You on behalf of any Member and will be responsible for each Member’s compliance or failure to comply with the Member Agreement. You will promptly notify FitHive upon becoming aware of any breach of any Member Agreement and will enforce the terms of each Member Agreement against each Member. If You fail to enforce the Member Agreement against any Member, upon the request of FitHive, You will provide FitHive with such authority and such information regarding such Member as is required for FitHive to enforce the Member Agreement directly against that Member.
EXHIBIT A – USER AGREEMENT
Third-Party Services. The services provided to Member under this Agreement include certain services developed, provided or maintained by third-party service providers of Member (“Third Party Providers”). Access to or use of any those services (“Third Party Services”) by Member are subject to any separate agreement that Member may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. All other Third Party Services will be subject to the terms of this Agreement. Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against Member in the case of any breach of those terms.
Representations, Warranties and Covenants. Member represents, warrants, and covenants that: (a) Member has the legal right and authority to enter into this Agreement; (b) Member has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement Member enter into in connection with any of the services provided under this Agreement; (c) all Content (as defined below) is in compliance with the terms of this Agreement; (d) Member will access and use the services provided under this Agreement in compliance with the terms of this Agreement and all laws, rules and regulations applicable to its obligations under this Agreement; (e) Member will not export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (f) Member will not remove or export from the United States or allow the export or re-export of the Service (i) into (or to a national or resident of) any embargoed or terrorist-supporting country, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import laws; and (g) Member is not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (f) immediately above.
Disclaimer. THE SOLE WARRANTIES REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE THOSE EXPRESS WARRANTIES (IF ANY) PROVIDED TO Member BY Member UNDER THIS AGREEMENT. ALL THIRD PARTY SERVICES ARE PROVIDED BY EACH THIRD PARTY PROVIDER STRICTLY “AS IS” AND “AS AVAILABLE” AND ALL THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ALL THIRD PARTY SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES (AS DEFINED BELOW). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Member OR ANY THIRD PARTY PROVIDER WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF THIRD PARTY PROVIDER.
Indemnification. Member agrees to and hereby does indemnify, defend, and hold harmless Member, its Third Party Providers and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from Member accessing or using the services provided under this Agreement (including any Third Party Services) or from any email or other communication generated or sent through such services or any content contained therein, whether or not in breach of this Agreement.
Limitation on Liability. Member AGREES THAT RESPONSIBILITY AND LIABILITY FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT IS STRICTLY WITH USER. NO THIRD PARTY PROVIDER WILL HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING THIRD PARTY SERVICES), INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER FORM DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABILITY OF ANY THIRD PARTY PROVIDER WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. NEITHER Member NOR ANY THIRD PARTY PROVIDER WILL BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (A) SENSITIVE DATA (AS DEFINED BELOW) SENT TO Member OR SUCH THIRD PARTY PROVIDER; (B) VIOLATION OF ANY LAW BY Member OR SUCH THIRD PARTY PROVIDER WHEN ACTING AT MEMBER’S DIRECTION; OR (C) THE SENDING BY Member OR SUCH THIRD PARTY PROVIDER OF Member’S EMAILS, INCLUDING ANY CLAIMS AGAINST Member OR SUCH THIRD PARTY PROVIDER DUE TO Member’S SENDING OR DATA COLLECTION PRACTICES OR CONTENT (AS DEFINED BELOW).
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