COACH KENDRA, INC.
END USER LICENSE AGREEMENT
Effective Date: November 17, 2013.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE Coach.me APPLICATION OR ANY ACCOMPANYING SERVICES (COLLECTIVELY, THE “ LICENSED APPLICATION”) AND THE SERVICES PROVIDED BY COACH KENDRA, INC. (THE “SERVICES”). THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”), THE PRIVACY POLICY AVAILABLE AT https://www.coach.me/help/privacy-policy, AND THE TERMS OF SERVICE, AVAILABLE AT https://www.coach.me/help/terms-of-use GOVERN USE OF THE LICENSED APPLICATION AND THE SERVICES UNLESS YOU AND LIFT WORLDWIDE, INC. (“Coach.me”) HAVE EXECUTED A SEPARATE AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF SERVICE AND THIS AGREEMENT, THIS AGREEMENT SHALL GOVERN.
Coach.me is willing to license, not sell, the Licensed Application to you only upon the condition that you accept all the terms contained in this Agreement, including the Privacy Policy and the Terms of Service. By clicking on the “I accept” button below or by using the Licensed Application, you indicate that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then Coach.me is unwilling to license the Licensed Application to you.
This Agreement is entered into between you and Coach.me. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Licensed Application. Coach.me, not Apple, is solely responsible for the Licensed Application and the content thereof as set forth hereunder, including, but not limited to any claims that may arise therefrom. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/), for purposes of which, you are the “the end-user” and Coach.me is the “Application Provider." In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
Coach.me reserves the right, at its sole discretion, to modify, discontinue or terminate the Licensed Application or to modify this Agreement, at any time and without prior notice. If Coach.me modifies this Agreement, Coach.me will post the modification at https://www.coach.me/help/eula and in the Terms of Service (the “App ToS”), accessible on your Device in the Settings area. Coach.me will endeavor to notify you of any changes by email, but will not be liable for any failure to do so. Coach.me will also update the “Effective Date” at the top of this End User License Agreement. By continuing to access or use the Licensed Application after Coach.me has posted a modification on the Site, the App ToS, or provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Licensed Application.
a. Ownership; License: Coach.me shall own and retain ownership in the Licensed Application, and all intellectual property therein. Contingent upon your compliance with the terms and conditions of this Agreement, Coach.me hereby grants to you a limited, non-transferable, non-exclusive, non-assignable, revocable license (the “ License”) to use the Licensed Application on any iPhone, iPad or iPod touch (collectively, a “Device”) that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions available athttp://www.apple.com/legal/itunes/us/terms.html#APPS (the " Usage Rules"). This license does not allow you to use the Licensed Application on any Device that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple Devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of Coach.me and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Coach.me that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Consent to Use of Data: Coach.me’s use of your personal information shall be governed by its Privacy Policy, available at https://www.coach.me/help/privacy-policy. By using the Licensed Application, you indicate your understand of and acceptance of the Privacy Policy.
c. Termination: The License is effective until terminated by you or Coach.me. Your rights under this License will terminate automatically without notice from Coach.me if you fail to comply with any term(s) of this Agreement. Upon termination of the License, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
d. Username; Password: You are responsible for maintaining the confidentiality of any user ID and/or password used by you in connection with the Licensed Application. You expressly agree not to share your user ID and/or password with any other person. You are solely responsible for all activities that occur under your user ID and/or password, and you agree to notify Coach.me immediately of any unauthorized use of your user ID and/or password or any other breach of security related to the Licensed Application. If you are concerned that your password has been compromised, or you have lost your Device, it is your responsibility to change your password, notify Coach.me immediately, and cancel any unauthorized uses or payments. Coach.me WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO SAFEGUARD YOUR USER ID, PASSWORD, DEVICE, OR TO COMPLY WITH THIS SECTION.
e. Social Media and Networking Sites: As part of the functionality of the Licensed Application, you may login through online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Licensed Application; or (ii) allowing Coach.me to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Coach.me and/or grant Coach.me access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Coach.me to pay any fees or making Coach.me subject to any usage limitations imposed by such third party service providers. By granting Coach.me access to any Third Party Accounts, you understand that (i) Coach.me may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “ SNS Content”) so that it is available on and through the Licensed Application via your Account, including without limitation any friend, contacts or following/followed lists, and (ii) Coach.me may submit and receive additional information to your Third Party Account as indicated herein. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be governed by Section (b) of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through the Licensed Application. Please note that if a Third Party Account or associated service becomes unavailable or Coach.me’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Licensed Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Coach.me makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Coach.me is not responsible for any SNS Content.
f. Use of Licensed Application: Neither Coach.me, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by the Licensed Application.
You understand that by using the Licensed Application, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Licensed Application at your sole risk and that Coach.me shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
You agree that the Licensed Application may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Licensed Application.
The Licensed Application is not available in all languages or in all countries. Coach.me makes no representation that the Licensed Application is appropriate or available for use in any particular location. To the extent you choose to access Licensed Application, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable international, foreign, national, state, or local laws.
Coach.me, and its licensors, reserve the right to change, suspend, remove, or disable access to any portion(s) of or the entire the Licensed Application at any time without notice. In no event will Coach.me be liable for the removal of or disabling of access to any portion of the Licensed Application. Coach.me may also impose limits on the use of or access to any portion(s) of the Licensed Application, in any case and without notice or liability.
g. Representations and Warranties: By using the Licensed Application, you expressly represent and warrant that (i) you have reviewed the Usage Rules, (ii) you have the right, authority and capacity to enter this Agreement and abide by its terms, (iii) your use of the Licensed Application is for your sole, personal, non-commercial use, (iv) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, (v) you are not listed on any U.S. Government list of prohibited or restricted parties, and (vi) you are at least 18 years of age. If you reside in a jurisdiction which restricts the use of the Licensed Application because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Licensed Application. You may not authorize others to use your user account, and you may not assign or otherwise transfer your user account to any other person or entity. When using the Licensed Application you agree to comply with all applicable laws from your home nation, and the country, state and city in which you are present while using the Licensed Application.
You may only access the Licensed Application using authorized means. It is your responsibility to have internet access via a Device and to ensure that you download the correct Licensed Application for your Device. Coach.me reserves the right to terminate this Agreement should you be using the Licensed Application with an incompatible or unauthorized Device.
By using the Licensed Application, you agree that:
· You will only use the Licensed Application for lawful purposes; you will not use the Licensed Application for sending or storing any unlawful material or for fraudulent purposes.
· You will not use the Licensed Application to cause nuisance, annoyance or inconvenience.
· You will not impair the proper operation of the network.
· You will not try to harm or disrupt the integrity of the Licensed Application in any way whatsoever.
· You will not copy, reverse engineer, decompile, or distribute the Licensed Application or other content without written permission from Coach.me.
· You will only use the Licensed Application for your own use and will not resell it to a third party.
· You will keep secure and confidential your account password or any identification we provide you which allows access to the Licensed Application.
· You will provide Coach.me with whatever proof of identity we my reasonably request.
h. Third Party Services: The Licensed Application may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites, products, or services (collectively, "Third Party Materials"). By using the Licensed Application, you acknowledge and agree that Coach.me is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Coach.me does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials. Third Party Materials are provided solely as a convenience to you. You must comply with all applicable third party terms of agreement when using Third Party Materials.
i. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND Coach.me HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Coach.me DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Coach.me OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
j. Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL Coach.me BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, OR ARISING OUT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF Coach.me HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER JURISDICTION), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
k. Export Law: You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Licensed Application for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
l. Government Users: The Licensed Application and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
m. General Provisions: This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to or application of conflicts of law rules or principles. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Coach.me’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement, the Privacy Policy and the Terms of Service are the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Coach.me have executed a separate agreement.
n. Contact Information: Should you have any questions about this Agreement or the Licensed Application, you may contact Coach.me via email at support [at] coach [dot] me or telephone 361.816.5667 or deliver written mail to the following address: Coach Kendra, Inc., 4455 S. Padre Island Dr., Ste. 15, Corpus Christi, TX 78411 USA.
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Copyright 2015 Coach Kendra, Inc.