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Effective Date: September 1, 2015
Changes to Agreement
COOPER APPS RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY: (I) POSTING OF A NEW VERSION; (II) A CHANGE NOTICE POSTED IN THE APPLICATION; AND/OR (III) AN EMAIL NOTIFICATION TO YOU. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Services following the date in which the modified or amended Agreement is posted.
Subject to your compliance with the terms and conditions of this Agreement, Cooper Apps grants you a non-exclusive, non-sublicensable, revocable, non-transferable license to use the Services by downloading and installing our Applications. The Services are for your personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by us. The Services, including the Applications or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Cooper Apps. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of Cooper Apps, its affiliates or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.
Various company, product, and service names displayed on the Services may be trademarks or services marks owned by others (the “Third-Party Trademarks”). Your use of the Services should not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Third-Party Trademark displayed on the Services.
The Services Do Not Provide Professional Medical Services or Advice; No Doctor-Patient Relationship
Cooper Apps provides the Services for informational purposes only. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. Cooper Apps is not a medical professional, and Cooper Apps does not provide medical services or render medical advice. The Services are not a substitute for the advice of a medical professional, and the information made available on or through the Services should not be relied upon when you make medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, you should consult a medical professional. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND COOPER APPS.
YOU HEREBY AGREE THAT, BEFORE USING THE SERVICES, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM EXERCISE.
Reliance on Third-Party Content
Opinions, advice, statements, or other information, including, without limitation, food, nutrition and exercise data, made available by means of the Services by third parties, are those of their respective authors, and should not necessarily be relied on. Such authors are solely responsible for such content. COOPER APPS DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE SERVICES; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL COOPER APPS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES OR TRANSMITTED TO OR BY ANY THIRD-PARTY. You also understand that by accessing and using the Services, you may encounter information, materials and subject matter that you or others may deem offensive, indecent, or objectionable. You agree to use the Services at your sole risk and that Cooper Apps and its affiliates, partners, suppliers and licensors shall have no liability to you for information, material or subject matter that is found to be offensive, indecent, or objectionable.
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE APPLICATIONS AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY COOPER APPS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, BUSINESS PARTNERS, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
User Information; Password Protection
In connection with your use of the Services, you are required to complete a registration form. You represent and warrant that all user information you provide on the registration form or otherwise in connection with your use of the Services will be current, complete and accurate, and that you will update that information as necessary to maintain its completeness and accuracy.
You may also be asked to provide a user name and password in connection with your use of certain aspects of the Services. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, user name, or password of any other person or user at any time. You agree to notify Cooper Apps immediately of any unauthorized use of your account, user name, or password. Cooper Apps shall not be liable for any loss that you incur as a result of someone else using your account, username, or your password, either with or without your knowledge. You may be held liable for any losses incurred by Cooper Apps, its business partners, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
Consent to Receive Email from Cooper Apps
In providing the Services, you may receive periodic email communications regarding the Services, new product offers or functionality which are part of the Services and which you cannot opt-out of receiving. You may also receive periodic promotions and other offers or materials Cooper Apps believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in the email, newsletter, or promotion; or (b) changing the email preferences in your account.
The Services may include links to websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Cooper Apps and some of whom may not. Cooper Apps does not have control over the content or performance of Third-Party Websites. COOPER APPS HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, COOPER APPS DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION, MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. COOPER APPS DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
“User Content” is any content, materials or information (e.g., any text, information, and other content and data) that you upload or post to, or transmit, display, perform or distribute by means of the Services, whether in connection with your use of the Application, or through the use of any Third-Party Websites or Third-Party Services or otherwise. You hereby grant Cooper Apps and its officers, directors, employees, agents, affiliates, representatives, services providers, partners, sublicensees, successors, and assigns (collectively, the “Cooper App Parties”) a perpetual, fully paid-up, worldwide, sublicensable, irrevocable, assignable license to copy, distribute, publish, transmit, publically display or perform, edit, modify, translate, reformat and otherwise use User Content in connection with the operation of the Services and any other similar services or related businesses, in any medium now existing or later devised, including without limitation for research purposes. You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Cooper App Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy. You will not be compensated for any exercise of the license granted under this section.
Cooper Apps reserves the right to (i) remove, suspend, edit or modify any User Content in its sole discretion, including without limitation any User Content at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if Cooper Apps is concerned that you may have violated this Agreement), or for no reason at all and (ii) to remove, suspend or block any User Content submissions. Cooper Apps also reserves the right to access, read, preserve, and disclose any information as Cooper Apps reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Cooper Apps, its users and the public.
Cooper Apps imposes certain restrictions on your use of the Services. You represent and warrant that you will not: (a) provide false, misleading, or inaccurate information to Cooper Apps; (b) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (c) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, bots, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Applications for any use, including without limitation use on third-party websites; (d) access content or data not intended for you, or log onto a server or account that you are not authorized to access; (e) attempt to probe, scan, or test the vulnerability of the Services, the Applications, or any associated system or network, or breach security or authentication measures without proper authorization; (f) interfere or attempt to interfere with the use of the Applications, or the Services, by any other user, host or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; or (g) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Cooper Apps in providing the Applications. Any violation of this Section may subject you to civil and/or criminal liability.
You acknowledge and agree that the Applications and all intellectual property rights associated therewith are, and shall remain, the property of Cooper Apps. Furthermore, you acknowledge and agree that the source and object code of the Applications and the format, directories, queries, algorithms, structure and organization of the Applications are the intellectual property and proprietary and confidential information of Cooper Apps and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Applications by implication, estoppel or other legal theory, and all rights in and to the Applications not expressly granted in this Agreement are hereby reserved and retained by Cooper Apps.
The Applications may utilize or include third party software that is subject to third party license terms (“Third-Party Software”). You acknowledge and agree that your right to use such Third-Party Software as part of the Applications is subject to and governed by the terms and conditions of the third-party license applicable to such Third-Party Software. In the event of a conflict between the terms of this Agreement and the terms of such third-party licenses, the terms of the third-party licenses shall control with regard to your use of the relevant Third-Party Software.
Cooper Apps and the Cooper Apps logo (collectively, the “Cooper Marks”) are trademarks or registered trademarks of Cooper Health and Fitness Applications, LLC or its affiliates. Other trademarks, service marks, graphics, logos and domain names appearing on the Services may be the trademarks of third-parties. Neither your use of the Services, nor this Agreement, grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Cooper Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Cooper Marks generated as a result of your use of the Services will inure to the benefit of Cooper Apps, and you agree to assign, and hereby do assign, all such goodwill to Cooper Apps. You shall not at any time, nor shall you assist others to, challenge Cooper Apps’ or its affiliates’ right, title, or interest in or to, or the validity of, the Cooper Marks.
Copyrighted Materials; Copyright Notice
All content and other materials available through the Applications and Services, including without limitation the Cooper Apps logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Cooper Apps or are the property of Cooper Apps’ licensors and suppliers. Except as explicitly provided, neither your use of the Services nor this Agreement grant you any right, title or interest in or to any such materials.
If you are a copyright owner or agent thereof and believe that any of the User Content or other content on the Applications or Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claiming to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and email address; (v) a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under the penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement and other notices related to User Content and/or violations of this Agreement is: Cooper Health and Fitness Applications, LLC, Attn: Legal Dept., 12200 Preston Road, Dallas, Texas 75230.
Disclaimers; Limitations of Liability
COOPER APPS, ON BEHALF OF ITSELF AND ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE APPLICATIONS AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, COOPER APPS, ON BEHALF OF ITSELF AND ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE APPLICATIONS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER COOPER APPS NOR ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS WARRANTS THAT THE APPLICATIONS OR THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATIONS OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Your Responsibility for Loss or Damage; Backup of Data
YOU AGREE THAT YOUR USE OF THE APPLICATIONS AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD COOPER APPS AND ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE APPLICATIONS OR SERVICES. THE APPLICATIONS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
Limitations of Liability
THE LIABILITY OF COOPER APPS AND ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COOPER APPS OR ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO COOPER APPS OR ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE APPLICATIONS OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF COOPER APPS AND ITS AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE $50.00, AND YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COOPER APPS AND YOU, AND THAT THE APPLICATIONS AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
Your Representations and Warranties
Indemnity by You
Without limiting any indemnification provision of this Agreement, you agree to defend, indemnify and hold harmless Cooper Apps and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Third-Party Service Providers (collectively, the “ Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) your access to or use of the Applications or Services; (iii) your provision to Cooper Apps or any of the Indemnified Parties of information or other data; (iv) your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation; or (v) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
Governing Law; Jurisdiction and Venue
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Dallas, Texas, and shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict of laws principals. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
Either party may terminate this Agreement and its rights hereunder at any time, for any or no reason at all, by providing the other party notice of its intention to do so in accordance with this Agreement. This Agreement shall automatically terminate in the event that you breach any of this Agreement’s representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by Cooper Apps. Upon termination, all rights, licenses and obligations created by this Agreement will terminate, except that Sections 1-2, 4-20 will survive any termination of this Agreement.
Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Applications and Services. Subsequent to termination, Cooper Apps reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Applications and Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
If Cooper Apps, in Cooper Apps’ discretion, takes legal action against you in connection with any actual or suspected breach of this Agreement, Cooper Apps will be entitled to recover from you as part of such legal action, and you agree to pay, Cooper Apps’ reasonable costs and attorneys’ fees incurred as a result of such legal action. Cooper Apps will have no legal obligation or other liability to you or any third party out of or relating to any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. Cooper Apps shall give any notice by email sent to the most recent email address, if any, provided by you to Cooper Apps. You agree that any notice received from Cooper Apps electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH COOPER APPS IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY COOPER APPS OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Cooper Apps by certified U.S. mail, postage prepaid, return receipt requested, to Cooper Health and Fitness Applications, LLC, Attn: Legal, 12200 Preston Road, Dallas, Texas 75230.
This Agreement constitutes the entire agreement between Cooper Apps and you concerning your use of the Services. This Agreement may only be modified by a written amendment signed by an authorized executive of Cooper Apps or by the unilateral amendment of this Agreement by Cooper Apps and by the posting by Cooper Apps of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Cooper Apps may assign or transfer this Agreement at any time, with or without notice to you. This Agreement and all of your rights and obligations hereunder will not be assignable or transferable by you without the prior written consent of Cooper Apps. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and Cooper Apps are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Except for the Cooper App Parties as and to the extent set forth in Section 11 and the Indemnified Parties as and to the extent set forth in Sections 16, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Cooper Apps and Cooper Apps’ licensors and suppliers, and would therefore entitle Cooper Apps or Cooper Apps’ licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.