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© 2017 Fitsoft. All Rights Reserved.
Fitsoft Inc. Software Service Agreement
Please carefully read this Software Service Agreement ("Agreement") as it affects your legal rights and remedies and sets the terms of service that you agree to by using Fitsoft Inc.’s software services.
Fitsoft Inc. is a company dedicated to providing its customers with the latest technology in mobile and web services and devoted to breaking down barriers between our customers and their potential user base. We save our customers the time and headaches of setting up their own websites by providing a service that has been tried and tested. To this end, Fitsoft uses its own proprietary software that is tailored to meet the specific needs of each customer and also collects information necessary to provide such services. This Software Service Agreement sets out the terms on which you agree to use our software services and also addresses important topics such as privacy, fees, liability and warranties.
In consideration of the mutual covenants below, the Parties agree as follows:
“Agreement:” Refers to the terms of this Software Service Agreement. These terms are intended as a comprehensive and exclusive agreement between User or Customer and Fitsoft and no other subsequent oral or written agreements will modify these terms, except for amendments as necessary for changes in the Software Service.
“Cardholder Data:” Credit card numbers, expiration dates, billing addresses, and cardholder names of Users and Customers.
“Customer:” An individual using Fitsoft as an instructor and/or any other type of administrator of a fitness website.
“Parties:” Any Customer or User and Fitsoft, collectively.
“Service Fee:” A fee associated to “User” for taking classes or others services that Customer’s offer or provide using a Site.
“Site:” Any site created or managed using the Software Service.
“Software:” Consists of templates, modules, plug-ins, and any other software written and supported by Fitsoft, including all files and images contained in or generated by the software, and accompanying data.
“Software Service:” Fitsoft’s combinations of proprietary Software and support, initially offered in three different packages.
“User:” Any students or other individuals using a Site to take classes or other services that Customer’s provide using a Site.
“User Content:” User or Customer generated information distributed by posting, downloading, displaying, performing, transmitting, or otherwise using the Software Service.
III. Use of the Software Service
Fitsoft may make certain software available to you. If you download any Software, such Software is deemed to be licensed to you by Fitsoft as provided below. Fitsoft does not transfer either the title or the intellectual property rights to the Software, and Fitsoft retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Fitsoft or its licensors and you may not copy or use them in any manner. Template images including banner images, promotional images, and stock photography are for sample display purposes only and are not to be used in actual website.
a. Customers: By purchasing or using a trial of one of Fitsoft’s Software Service packages, Customers are granted a nonexclusive, nontransferable license to use the Software Service and its accompanying files and images for commercial use. Customers also grant Fitsoft the right to post its trademark on the Site.
b. Users: If you download Software from the Site, the Software is deemed to be licensed to you by Fitsoft, for your personal, noncommercial, home use only.
Some products and services available through or in connection with a Site require that you purchase a subscription or otherwise pay a fee. You hereby authorize Fitsoft and its merchant provider to charge your credit card or checking account in advance for all applicable fees incurred by you or on your behalf in connection with the product or service you have chosen to use. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your account by you or anyone else using your account. Fitsoft reserves the right to change the amount of, or basis for determining, any fees or charges for the services it provides, and to institute new fees, charges, or terms effective upon prior notice to customers. Such new fees, charges, or terms shall not take effect earlier than 30 days after Fitsoft posts such modified fees on the Fitsoft website or communicates them to you by e-mail. Fitsoft reserves the right to terminate any account at any time for any reason.
Fitsoft agrees that it will terminate Customer's account upon notice from Customer. If cancellation is received within the first 30 days of Customer signing up for a service, Customer will be refunded all subscription fees for that service, but Customer will still be obligated to pay any other charges incurred. If Customer cancels a service after 30 days of signing up for a service, no refund for unused time on such service will be made. If Customer has a balance due on any account, Customer agrees that Fitsoft can charge these unpaid fees to Customer's credit card or checking account.
Users will be charged a “Service Fee” of $0.99 and a 2% fixed percentage per transaction for use of Fitsoft’s Software Service. Charges will be billed to: FITSOFT, Inc. These charges will be made plain for Users to see and agree to at checkout.
Customer subscriptions will be automatically renewed. The renewal charge shall be equal to the original signup price, unless otherwise notified in advance by Fitsoft by e-mail to you or as posted on the Fitsoft website. Customer will have 30 days after the date that any renewal fee is posted to Customer's charge account to give notice that he or she wishes to cancel his or her subscription. The subscription will be cancelled on receipt of such notification and a credit will be posted to Customer's charge account equal to the latest renewal fee charged.
Customer's right to use the Software Service is subject to any expenditure limits established by the Fitsoft or by Customer's credit card issuer. If payment cannot be charged to Customer's credit card or Customer's charge is returned for any reason, including chargeback, Fitsoft reserves the right to either suspend or terminate Customer's access and account, thereby terminating this Agreement and all obligations of Fitsoft hereunder.
If Customer has reason to believe that Customer's account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of Customer's or Users’ ID, password, or any credit, debit, or charge card number stored), please notify Fitsoft of the problem to avoid possible liability for any unauthorized charges to Customer's or Users’ accounts.
It is your responsibility to notify Fitsoft if your credit card has changed or has expired and to make appropriate changes or your service may be disconnected or interrupted.
Fitsoft may, at its own discretion, give refunds to Customers or Users. Fitsoft will investigate any matters brought to its attention and refund Customers or Users when it decides it is appropriate.
VI. Hosting of the Software Service
VII. Software Updates
From time to time, Fitsoft may update the software associated with a Service for many reasons, including but not limited to, (a) to fix bugs or problems in previous versions; and/or (b) to enhance functionality or features. Fitsoft makes no warranty that such updates will not affect your use of the Software Service or introduce new but undiscovered bugs into the software. Further, Fitsoft shall not be responsible for the effect an update has on any code not provided by Fitsoft and any modifications to such code to restore functionality shall be Customer's sole responsibility and cost.
Where support is provided by Fitsoft, Fitsoft will provide technical support for the most recent update or version of the Software associated with a Software Service. From time to time, Fitsoft may provide support for an older version, however it reserves the right to suspend or terminate such support at anytime, with or without notice.
VIII. User Content License
You grant Fitsoft a license to use the materials you post to the Site or by otherwise using the Software Service. By posting, downloading, displaying, performing, transmitting, or otherwise distributing User Content to the Site or Service, you are granting Fitsoft, its affiliates, officers, directors, employees, consultants, agents, and representatives a non-exclusive, worldwide, royalty-free, transferable license to use User Content in connection with the operation of the Internet business of Fitsoft, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. You agree that Fitsoft may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Site or Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
Customers and Users agree to indemnify, defend, and hold Fitsoft, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from:
1. The operation, maintenance, and content of the Software Service;
2. Customer's or User’s use of the Software Service;
3. Failure by Customer or User to comply with any applicable privacy laws; and
4. Any breach of this Agreement by the Parties.
Customer shall indemnify, defend, and hold Fitsoft, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from access to or use or misuse of the Consumer Data and/or the Cardholder Data by Customer, its Users, or affiliates. This indemnity clause shall survive the termination of this Agreement.
X. Miscellaneous Terms:
Governing Law. This Agreement will be interpreted in accordance with the laws of the State of California, including all matters of construction, validity, performance, and enforcement, without giving effect to any principles of conflict of laws.
Dispute Resolution. Any action to enforce or interpret this Agreement, or to resolve disputes with respect to this Agreement, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in the County of San Francisco, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
Assignment and Assumption. This Agreement may not be assigned by Customer without the prior written consent of Fitsoft, which may be withheld at Fitsoft's sole discretion. Fitsoft may require any proposed assignee of this Agreement to enter into a new written agreement with Fitsoft. Fitsoft may assign this Agreement to any person or entity, and thereafter be relieved of all liability hereunder.
Notices. All notices, requests, demands, and other communications shall be validly given if delivered in person, facsimile transmission, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address provided in the signature block of this Agreement, unless such party has notified the other party of a substitute contact information in writing pursuant to this article. Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
Relationship. The Parties shall do business at their own risk and for their own profit. Nothing in this Agreement shall constitute a partnership or agency relationship between Customer and Fitsoft or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
Government Regulations. Customer or User shall at its own expense comply with all laws, ordinances, rules, regulations and other requirements of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this Agreement.
Severability. If any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other portions of this Agreement shall remain in full force and effect.
Force Majeure. No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, terrorist attack, civil unrest, labor unrest, shortage of or inability to obtain material as equipment, Internet virus, or denial of service attack.
No Implied Waiver: The failure of Fitsoft to enforce at any time or for any period of time, the provisions hereof in accordance with their terms will not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.
No Third Party Beneficiary. The benefits and protection provided by this Agreement shall inure solely to the benefit of the Parties. This Agreement shall not be deemed to create any right in any person or entity who is not a party to this Agreement and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party.