TERMS AND CONDITIONS

Welcome to FitClick.com (the "Site").

The Site is owned and operated by Genesant Technologies, Inc. ("GTI"). These Terms and Conditions (the "Terms") constitute a legal agreement (the "Agreement") between you and GTI. PLEASE READ THE TERMS CAREFULLY BEFORE USING THE SITE. By using the Site or downloading the FitClick Mobile Application ("FMA" and, together with the Site, the "Service") to a mobile device, you (1) represent that you are at least 18 years of age and, if using FMA, have the consent of the subscriber of a participating mobile communications carrier to sign up for and use the Service on behalf of the subscriber, and (2) agree to be bound by these terms and conditions of this Agreement.

In this Agreement, "you" and "your" refer to each customer (including for users of FMA the subscriber of a participating mobile communications carrier on whose behalf you are entering into this Agreement) and his or her agents, and "we", "us" and "our" collectively refer to GTI. This Agreement explains our obligations to you and your obligations to us in relation to the Service.

GTI may revise and update these Terms, in whole or in part, at any time. Please periodically review the Terms posted on the Site because your continued usage of the Site will mean you accept those changes.

Section 1. Description of the Service; Charges.

GTI provides (1) FMA for download to supported mobile devices on supported mobile communications carrier networks and (2) the Site. To download FMA, you must complete a registration process (the "Registration") on the Site. The download of FMA is effectuated by the delivery of Web-encoded links via SMS. Data provided through FMA uses Internet means of delivery. The Site provides content via the Internet.

Please note that FMA is not available on all mobile devices. Check the Site for further details concerning the availability of FMA.

FMA provides customized workouts and/or customized meal plans, depending on preferences you submit during Registration. We offer FMA free of charge. Please note, however, that depending on your mobile communications carrier service contract, your mobile communications carrier may charge you standard message rates for the delivery of SMS text messages that we send upon your completion of Registration and at various other times during your use of the Service. Also note that, depending on your mobile communications carrier service contract, your mobile communications carrier may charge you data access and download charges that result from your use of FMA. The terms and conditions of your mobile communications carrier's service agreement will apply.

We also offer as part of the Service a collection of Web services on the Site. These services include access to the same customized workouts or customized meal plans offered through FMA. The Site also allows use of additional Service features not available through FMA.

We offer the Site free of charge.

Section 2. Access to the Service.

In order to use FMA, you must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which GTI makes FMA available (e.g., a prepaid plan) as well as any carrier services necessary to download content (access to your carrier's data plan), and pay any service fees associated with such access. In addition, you must provide all equipment and software, other than FMA, necessary to connect to the Service, including, but not limited to, a mobile handset or other mobile access device that is in working order and suitable for use in connection with the Service. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with GTI's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and GTI shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.

Section 3. General Disclaimer; No Medical Advice.

The content provided on or through the Service is presented in summary form, is general in nature and is provided for informational purposes only. The content is not intended in any way to be a substitute for professional medical advice. Always seek the advice of your physician or other qualified health care provider with any questions you may have regarding a medical condition. Neither the content nor any other aspect of the Service is intended to be relied upon for medical diagnosis or treatment. Never disregard medical advice or delay in seeking it because of something you have read on or through the Service.

GTI does not recommend or endorse any specific test, products or procedures that may be mentioned on or through the Service. Any opinions expressed on or through the Service are the opinions of the authors. GTI does not assume any liability for the contents of any material provided on or through the Service. Reliance on any information provided by GTI or visitors to the Site is solely at your own risk. GTI assumes no liability or responsibility for damage or injury to persons or property arising from any use of any product, information, idea or instruction contained in the materials provided to you. GTI reserves the right to change or discontinue at any time any aspect or feature of the Service.

Section 4. Position on Your Privacy.

See GTI's Privacy Policy for an explanation of our collection and use of personal information under this Agreement.

Section 5. Use of Content; Copyright.

Upon your acceptance of these Terms, GTI authorizes you to view or download a single copy of FMA and a single copy of the material on the Site. You agree that FMA is for your personal, noncommercial use on the mobile device you designate during Registration. You further agree that the Site is for your personal, noncommercial use.

Special rules may apply to the use of certain software and other items provided on the Site. Any such special rules are listed as "Legal Notices" on the Site and are incorporated into this Agreement by reference.

The contents of the Service, such as text, graphics, images, software applications including FMA, and other material including software licensed by GTI to permit individuals to use the Service ("Content"), are protected by copyright under both United States and foreign laws, and title to the Content shall not pass to you or any other person or entity. Unauthorized use of the Content may violate copyright trademark and other laws.

You may not transmit, broadcast, upload to any computer or mobile device, create derivative works of or make commercial use of any aspect of the Service. You may not -- nor may you attempt to, or authorize, encourage or support others' attempts to -- circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service.

With respect to information obtained from the Service's licensors, you are solely responsible for compliance with any copyright, trademark and other proprietary rights and restrictions and are referred to the publication data appearing in bibliographic citations, as well as to the copyright notices appearing in the original publications. You may not sell or modify the Content or reproduce, display, publicly perform, distribute or otherwise use the Content in any way for any public or commercial purpose. The use of the Content on any other Web site or in a networked computer environment for any purpose is prohibited.

Content is subject to change without notice at the editorial discretion of GTI. If you violate any of these Terms, your permission to use the Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.

Section 6. Company's Liability; Disclaimer of Consequential Damages.

THE CONTENT COMES FROM SOURCES BELIEVED TO BE ACCURATE, BUT MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS. GTI MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE SERVICE. THE USE OF THE SERVICE IS AT YOUR OWN RISK.

YOU ACKNOWLEDGE THAT IN CONNECTION WITH THE SERVICE, INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE, INTER-EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, MOBILE COMMUNICATIONS CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS AND OTHERS, ALL OF WHICH ARE BEYOND THE CONTROL AND JURISDICTION OF GTI AND ITS SUPPLIERS. ACCORDINGLY, GTI ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE SERVICE.

THE SERVICE AND THE CONTENT CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. GTI, ITS LICENSORS AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. GTI, ITS LICENSORS AND ITS SUPPLIERS MAKE NO REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY OR TIMELINESS OF THE CONTENT, SOFTWARE, TEXT, GRAPHICS, LINKS, OR COMMUNICATION PROVIDED ON OR THROUGH THE USE OF THE SERVICE. GTI, ITS LICENSORS, AND ITS SUPPLIERS DO NOT MAKE ANY WARRANTY THAT THE CONTENT SATISFIES GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS.

IN NO EVENT SHALL GTI, ITS LICENSORS, ITS SUPPLIERS OR ANY THIRD PARTIES MENTIONED ON OR THROUGH THE SERVICE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICE OR THE CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GTI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GTI SHALL BE LIABLE TO YOU ONLY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED $50,000. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.

Section 7. User Submissions.

Except as described herein, any communication that you post on the Site is considered to be non-confidential. You agree that you will not upload or transmit any communications that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party. By submitting communications to any part of this Site, you automatically grant -- or warrant that the owner of such content has expressly granted -- GTI a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication alone or as part of other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicenses.

Section 8. Use of Interactive Areas.

GTI may provide interactive areas on the Site ("Interactive Areas"). If you use an Interactive Area, you are solely responsible for your own communications and the consequences of posting those communications. GTI does not assume any responsibility for the consequences of any Interactive Area communications on or arising from use of the Site. In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately.

In consideration of being allowed to use the Interactive Areas, you agree that the following actions shall constitute a material breach of these Terms:

  • — Use of an Interactive Area for any purpose in violation of local, state, national or international laws;

  • — Post material that infringes on the intellectual property rights of others or on the privacy or publicity rights of others;

  • — Post material that is unlawful, obscene, defamatory, threatening, harassing, abusive, hateful or embarrassing to any person or entity as determined by GTI at its sole discretion pursuant to this Section 8;

  • — Post advertisements or solicitations of business;

  • — After receiving a warning, continue to disrupt the normal flow of dialogue or post comments that are not related to the topic being discussed (unless it is clear the discussion is free form);

  • — Post chain letters or pyramid schemes;

  • — Impersonate another person;

  • — Allow any other person or entity to use your identification to post or view comments;

  • — Post the same note more than once (The online word for posting many times on one topic is "spamming." Spamming is strictly prohibited); or

  • — Engage in any other conduct that restricts or inhibits any other person from using or enjoying the Interactive Areas or which, in the judgment of GTI, exposes GTI or any of its customers or suppliers to any liability or detriment of any type.

GTI reserves the right to record the dialogue in public chat rooms. GTI does not screen communications in advance and is not responsible for screening or monitoring material posted by any person or entity through such person or entity's use of the Service. If notified by a person using the Service of communication(s) which are alleged not to conform to the terms of this Section 8, GTI may investigate the allegation and determine in its sole discretion to remove or request the removal of the communication(s). GTI reserves the right to remove communications which are abusive, illegal, disruptive or that otherwise fail to conform with these Terms. In addition to the removal rights described above, GTI reserves the right to terminate a person's or entity's access to any or all Interactive Areas upon such person's or entity's breach of these Terms. GTI reserves the right (but is not obligated) to edit or delete any communication(s) posted on the Site, regardless of whether such communication(s) violate these standards for content. Furthermore, GTI reserves the right (but is not obligated) to monitor, edit or disclose any type of posting on the Interactive Areas for adherence to the Terms, if required in the course of normal operation and maintenance of the Site, or if required to do so by law or in the good-faith belief that such action is necessary to: (1) comply with the law or comply with legal process served; (2) protect and defend the rights of GTI or others; or (3) act in an emergency to protect the personal safety of our guests or the public. GTI HAS NO LIABILITY OR RESPONSIBILITY TO ANY PERSON OR ENTITY FOR PERFORMANCE OR NONPERFORMANCE OF THE AFOREMENTIONED SCREENING ACTIVITIES.

GTI does not represent or guarantee the truthfulness, accuracy or reliability of any of the material posted by Interactive Area users or endorse any opinions expressed by such users. ANY RELIANCE ON CONTENT POSTED IN AN INTERACTIVE AREA IS AT YOUR OWN RISK.

Through your use of the Site's Interactive Areas, you are agreeing to all of the aforementioned Terms for the use of such Interactive Areas contained herein.

Section 9. Links to Other Sites.

The Site may contain links to third party Web sites. These links are provided solely as a convenience to you and not as an endorsement by GTI of the content on such third-party Web sites. GTI is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party Web sites. If you decide to access linked third-party Web sites, you do so at your own risk. Your use of third-party Web sites is subject to the terms and conditions of use for such sites.

Section 10. Advertisements.

The Service may contain advertisements by third parties, and these advertisements may contain links to other Web sites. Unless otherwise specifically stated, GTI does not endorse any product or make any representation regarding the content or accuracy of any materials contained in, or linked to, any advertisement displayed on or through the Service.

Section 11. Indemnity.

You agree to defend, indemnify and hold GTI, its officers, directors, employees, agents, licensors and suppliers harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of the Service, Content (including FMA) or the Interactive Areas in a manner that violates or is alleged to violate these Terms. GTI shall provide notice to you promptly of any such claim, suit or proceeding and shall reasonably cooperate with you, at your expense, in your defense of any such claim, suit or proceeding.

Section 12. Export Control.

The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Content (including FMA) to countries or persons prohibited under the export control laws. By downloading the Content (including FMA), you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Content (including FMA).

Section 13. General.

GTI is based in Fairfax County, Virginia, in the United States of America. GTI makes no claims the Content is appropriate or may be downloaded outside of the United States. Access to the Content (including FMA) may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

Section 14. Jurisdiction.

You expressly agree that exclusive jurisdiction for any dispute with GTI or in any way relating to your use of the Service, resides in the courts of the Commonwealth of Virginia and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the Commonwealth of Virginia in connection with any such dispute including any claim involving GTI or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. This Agreement is governed by the internal substantive laws of the Commonwealth of Virginia, without respect to its conflict of laws principles. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.

Section 15. Complete Agreement.

EXCEPT AS EXPRESSLY PROVIDED IN A PARTICULAR "LEGAL NOTICE" ON THE SITE, THESE TERMS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND GTI WITH RESPECT TO THE USE OF THE SERVICE AND ANY SOFTWARE AND CONTENT CONTAINED THEREIN.

Thank you for your cooperation with these Terms. We hope you find the Service helpful and convenient to use! Questions or comments regarding the Service should be posted using our feedback form.

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