You are viewing this SwimSense Training Log Subscription Agreement (this Subscription Agreement) because You are preparing to access a proprietary application that is owned by Sportsense Technologies, Inc. and distributed by Sportsense Technologies, Inc. for the storing, viewing, and analyzing of Training Content (Training Log). The words You and Your refer to the person who has registered the Training Monitor with which the Training Log will be used; We, Us, and Our refer to Sportsense Technologies, Inc. (Sportsense), acting on behalf of itself or as the sublicensor and distributor for its third party licensors; Training Content means the exercise and fitness data, training plans, training logs, and any other content that You or Your coach or other training professional (Trainer) uploads or enters into the Training Log; and Training Monitor means the user-wearable physical performance monitoring and measuring equipment offered by Sportsense and its authorized manufacturing and distribution partners. Other words are used in this Subscription Agreement in their capitalized form where grammar does not require. These words have, in both their singular and plural forms, the meaning to them in the Section in which they first appear.
IMPORTANT NOTE TO BE READ BEFORE ACCESSING OR USING the TRAINING LOG
You may decide whether You agree to this EULA by clicking the "I Accept" checkbox presented during the registration process. Before You click indicating acceptance of this Subscription Agreement and prior to accessing or using the Training Log, carefully read all the terms and conditions of this Subscription Agreement. If You click indicating acceptance, You will be entering into a contract with Us just as if You had signed a paper document. If You do not agree to all of the terms of this Subscription Agreement, do not click acceptance of its terms and stop the registration process.
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU ARE HEALTHY ENOUGH TO ENGAGE IN THE ACTIVITES IN CONNECTION WITH WHICH YOU PLAN TO USE THE TRAINING LOG. NEITHER THE TRAINING LOG NOR ANY DATA, ANALYSIS, SUGGESTIONS, RECOMMENDATIONS OR OTHER OUTPUT THAT MAY RESULT FROM IT ARE INTENDED AS A SUBSITUTE FOR PROFESSIONAL MEDICAL ADVICE. ALWAYS CONSULT A LICENSED PHYSICIAN BEFORE STARTING ANY EXERCISE PROGRAM AND IF STRAIN, INJURY OR DISCOMFORT RESULT FROM YOUR ACTIVITIES. NEITHER THE TRAINING LOG, NOR THE TRAINING DEVICE NOR ANY INFORMATION OR STATEMENTS CONCERNING HEALTH, FITNESS, MEDICINE OR DIETARY SUPPLMENTS HAVE BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY CONDITION OR DISEASE.
1. License Rights; Account Types. Once You pay the required Training Log fees (if any) and agree to this Subscription Agreement, We grant You a license right to Use the Training Log, during the term set forth in Section 6), solely in connection with Your authorized use of a Training Monitor. We also grant You the right to access, display and print the Documentation in connection with Your authorized use of the Training Log and Training Monitor. The words: Device means computer hardware of any type (e.g., personal laptop, desktop, tablet, server, etc.) as well as any handheld communications equipment or media player (e.g., cellular phone, smart- or multi-media phone, personal digital assistant, MP3 player, etc.); Documentation means the online help and user guides We may publish and update from time to time and make available to authorized licensees either in print or via a link within the Training Log or on one of Our or Our business partners, Internet sites; and Use means: (a) remotely accessing and displaying the Training Log as it is loaded on servers We own or control; (b) uploading Training Content from the Training Monitor to the Training Log; and (c) using the executable features, functions and graphical interface components of the Training Log We make available for the type of account for which You are registered. We offer the following types of Training Log accounts:
(i) Swimsense Viewer: A Swimsense Viewer Account is a free account. If You are registered for a Swimsense Viewer Account, We grant You access to a limited set of basic features and functions available in the Training Log for Your own personal, noncommercial use only.
(ii)Swimsense Training Log: A Swimsense Training Log is a free account. If You are registered for a Swimsense Training Log, We grant You access to all the features and functions available through the Swimsense Viewer Account as well as additional access to premium features and functions for Your own, noncommercial use only.
(iii) Professional Trainer Account: A Professional Trainer Account is an account that is registered to a Trainer for the purpose of providing coaching and training services to the Trainer's clients. If You are registered for a Professional Trainer Account, We grant You access to all the features and functions available through the Swimsense Training Log Account and the right to use the Training Log to coach individuals who have a Swimsense Training Log Account that is linked to Your Professional Trainer Account (Registered Clients).
(iv) Professional Client Account: A Professional Client Account is a Swimsense Training Log Account which is linked to, and controlled by, a Professional Trainer Account. If You are registered for a Swimsense Training Log Account, the Trainer who controls Your account has the right to: (x) access Your account and Training Content and view, modify, add and delete Your Training Content; (y) renew or terminate Your account; and (z) direct Us to terminate Your access to the account.
2. License Scope. Restrictions and Conditions. The license is personal to You and thus is non-transferable, non-assignable and non-sublicenseable. Similarly, You must not Use the Training Log for the benefit of any other person or in connection with any Training Monitor, except if You have a Professional Trainer Account, You may Use the Training Log for the benefit of Your Registered Clients and in connection with their Training Monitors. You are prohibited from using the Training Log as a service bureau, SaaS provider or ASP. This means, for instance, that if You are a personal trainer, You may not Use the Training Log for Your clients unless they have their own registered Training Monitors. The license rights are also non-exclusive such that We may grant to others or reserve for Our own use, rights that are the same as or similar to those We grant to You. You are prohibited from reverse engineering, de-compiling, creating derivative works or improvements or attempting to create human readable source code from the Training Log. You must not remove, modify or obscure proprietary rights notices that We place on the Training Log or Documentation. This means that if You print any portion of the Documentation, You must reproduce and prominently display Our copyright, trademarks and similar rights notices. You must not export the Training Log or Documentation out of the country from which You purchased it. If You are required to provide a government or regulatory body with access to the Training Log, then such access must be subject to this Section and Your confidentiality obligations and subject to Our rights and Your obligations with respect to Us as Your third party licensor under FARS and DFARS (or their successor regulations). You are responsible for the acts and omissions of any person You may permit to Use the Training Log. We reserve the right to remotely access Your Device without prior notice to ensure compliance with this Subscription Agreement. We also reserve the right to use so-called, rights management, features that may allows Us to lock Your Training Log account to prevent unauthorized use, access or copying. Any act or omission in violation of this Section will be a material breach of the Subscription Agreement, will cause its automatic and immediate termination and may subject You to civil and criminal penalties.
3. Account ID and Password. Once You have registered for an account and paid any applicable fees, We will issue a unique user identification (ID) and password to You (Password) so that You can access the Training Log. You are responsible for maintaining the confidentiality of Your ID and Password, and You are not permitted to share or disclose Your ID and Password to anyone else. If You have a Professional Client Account, the Trainer to whom You are linked will have access to Your account and Training Content through their own ID and Password. You will be solely responsible for the activities of anyone accessing the Training Log using an ID and Password assigned to You, even if the individual is not, authorized by You. If You have reason to believe that Your ID or Password has been compromised or used without authorization, You must promptly change Your Password, using the functionality provided within the Training Log, and notify Us at support@finisinc.com or call Us at 1-888-333-4647.
4. Training Content.
4.1 Generally. You are responsible for all Training Content You upload to the Training Log. Uploading via the Internet inherently poses the risk of unintended disclosure and access by third parties to Your Training Content. We will make reasonable efforts to prevent Your Training Content from disclosure beyond the settings You select, but We cannot guarantee these settings will prevent Your Training Content from being viewed or accessed by unintended third parties and We will not be liable for such disclosures. We are not responsible for and do not control the Training Content, and, therefore, We do not guarantee the accuracy, integrity or quality of any Training Content.
4.2 Ownership of the Training Content. We do not claim ownership rights in Your Training Content. Subject to the non-exclusive license contained in the following paragraph, and the rights of Trainers, if applicable, You own and will retain any and all intellectual property rights that You may have in Your Training Content. By uploading Your Training Content via the Training Log, You represent and warrant that: (a) if You have an account other than a Professional Trainer Account, You own all right, title and interest in Your Training Content, or otherwise have the right to grant the license set forth in Section 4.3 below; (b) if You have a Professional Trainer Account, You are authorized by Your Registered Clients to link to the Professional Client Accounts You have specified in the registration process; and (c) in all cases, Your uploading of the Training Content on or through the Training Log does not violate the privacy rights, publicity rights, copyrights, trademarks, patents, trade secrets, contract rights, confidentiality, or any other rights of any third party.
4.3 License to Your Training Content. By registering for a Professional Client Account You grant the Trainer with whom Your account is linked a license to copy, modify, view, add and delete Your Training Content. By uploading Your Training Content on or through Training Log, You further grant Us a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide license (including the right to sublicense) to: (a) to use, copy, publicly perform, publicly display, store, distribute, and create derivative works based on the Training Content for Your benefit as necessary to allow You to use the features and functions within the Training Log; and (b) use the Training Content to create Resultant Data. Resultant Data means data or other information obtained from calculations, manipulations, analyses and/or other processes performed on the Training Content by Us or on Our behalf provided that the Training Data does not remain identifiable. We will be the exclusive owner of the Resultant Data and all intellectual property rights therein and/or related thereto, and there are no limitations or restrictions on Our use or distribution of the Resultant Data. You will have no right or title to, or any proprietary right in, any Resultant Data.
5. Payment. You will be required to pay the fees (if any) for Your Swimsense Training Log Account or Professional Trainer Account (including all linked Professional Client Accounts) up front for the term of the plan that You select prior to obtaining access to Your account. Please check Our Internet site to determine the specific plan offerings for You Training Log account type.
6. Term and Termination. You will be required to pay the fees (if any) for Your Swimsense Training Log Account or Professional Trainer Account (including all linked Professional Client Accounts) up front for the term of the plan that You select prior to obtaining access to Your account. Please check Our Internet site to determine the specific plan offerings for You Training Log account type.
6.1 Term and Renewal. The license rights and this Subscription Agreement commence upon the payment and completion of the registration of Your account for the term that You (or Your Trainer, if applicable) select unless Your account is terminated before the end of the term in accordance with this Section. All plans automatically renew unless You terminate Your account within the time specified in Your plan before Your plan is scheduled to renew.
6.2 Termination by Us. We reserve the right to disable Your ID and Password and terminate access to Your account regardless of the type if You fail to comply with this Subscription Agreement, including without limitation, failing to comply with Sections 2, 3 or 8. If We do so, We may also choose to delete Your account information or remove Training Content You have posted or uploaded. We will not provide any refund (if applicable) if Your Account is terminated for cause. We have the right to cease providing the Training Log at any time. If We cease to provide the Training Log, We will provide You with a pro rata refund (if applicable) for the remaining portion of the term of Your account.
6.3 Termination by You. You are free to terminate Your Swimsense Training Log Account or Professional Trainer Account, or if You are a Trainer, Your Registered Client's Professional Client Account at any time. We will not provide any refund (if applicable) upon termination, but You will continue to have access to Your account after You have terminated Your Swimsense Training Log Account or Professional Trainer Account until the expiration of Your plan's term. If You are registered for a Professional Client Account, please refer to the terms of Your separate agreement with Your Trainer regarding payment for, and termination of, Your Professional Client Account as between You and Your Trainer.
6.3 Term and Renewal. The license rights and this Subscription Agreement commence upon the payment (if applicable) and completion of the registration of Your account for the term that You (or Your Trainer, if applicable) select unless Your account is terminated before the end of the term in accordance with this Section. All plans automatically renew unless You terminate Your account within the time specified in Your plan before Your plan is scheduled to renew.
6.4 Survival; Re-affirmation. Sections 2, 8, and 9 will survive termination or expiration of this Subscription Agreement for any reason. If We offer an update or upgrade for the Training Log, We may require that You re-affirm Your agreement to this Subscription Agreement or enter into an entirely new end user agreement that will, if expressly stated, supersede this Subscription Agreement.
7. Support. We make no commitment under this Subscription Agreement to provide You with support, maintenance, updates, patches or bug-fixes for the Training Log. Please check Our Internet site to determine whether Your specific Training Log account type is covered by one or more of Our available support service offerings. If We do provide such support or maintenance, it is subject to such written support policies as will be posted on Our Internet site. These policies may vary by Training Log title, please review them carefully.
8. Intellectual Property; Confidentiality and Third Party Content. We do not sell the Training Log or Documentation under this Subscription Agreement. We license copies of them to You. As between You and Sportsense, all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets) and moral rights (including rights of authorship and modification) throughout the world in and to the Training Log and Documentation and all of their derivative works and improvements are owned or licensed by, and are proprietary to, Us. You are prohibited from using Our and Our products, names, brands or logos in any manner other than as required by this Subscription Agreement with respect to copies of the Documentation. In addition, all confidential, non-public information You receive from Us, including the contents of the Documentation and this Subscription Agreement must be held in strictest confidence and are not to be disclosed to any third party. To the extent that the Training Log or Documentation enables You to access, on-line or otherwise, content or materials that are not supplied by Us, You acknowledge that such materials and content are the property of their applicable owner and may be protected by applicable copyright law. This Subscription Agreement does not grant You any rights to such third party content or materials nor impose any responsibility or liability on Us with respect to them.
9. Warranties, Disclaimers and Liability. We expressly warrant to You that, in its original, unmodified form the Training Log will operate as described by the Documentation and does not contain any virus that is reasonably capable of being detected and removed by the corporate enterprise strength anti-virus software We use in development. If the Training Log does not comply with these warranties, We will, at Our discretion, correct the problem leading to non-compliance or refund any pre-paid fees for the Training Log. Those actions will be Our only liability and Your only remedy for breach of warranty. These are the only warranties and remedies We provide with respect to the Training Log. They do not apply to any defect, error or virus caused by a third party or arising from the interoperation of the Training Log with Your Devices or third party software. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, NON-INFRINGEMENT AND THOSE CONFERRED BY UCITA OR SIMILAR LAWS. WE DO NOT WARRANT THAT THE TRAINING LOG WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT be liable for ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, reliance OR PUNITIVE damages OR LOST OR IMPUTED profits OR LOST DATA. OUR TOTAL liability for all claims arising in connection with this SUBSCRIPTION AGREEMENT and the TRAINING LOG WILL be limited to direct damages in the amount equivalent to the fees actually received by US for the TRAINING LOG ACCOUNT. You will defend, indemnify and hold Us harmless from all claims, causes of action and all damages, costs and expenses (including reasonable legal costs) arising from Your breach of this Subscription Agreement as well as arising out of the Training Content You upload through the Training Log. You must bring all claims and causes of action within 6 months of their being discovered. These limitations and exclusions apply to all claims or causes of action under whatever theory brought and whether or not We were advised of the possibility of the claim.
10. Miscellaneous. Section headings are used for convenience of reference only. The laws of the State of Connecticut will govern this Subscription Agreement without regard to the principles of conflicts of laws. All disputes shall be brought in the appropriate state or federal court located in the State of Connecticut and such courts will have exclusive substantive and procedural jurisdiction. All legal notices must be sent ATTN: Subscription Agreement by certified mail or reputable overnight courier to the address appearing on the Sportsense Internet site. Failures in performance beyond Our control are excused. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. The word including is exemplary meaning including, without limitation or including, but not limited to, unless otherwise indicated. This Subscription Agreement is the entire agreement between You, Us and Our licensors with respect to the Training Log and supersedes any other verbal or written agreement.