Last Updated Aug 2nd, 2018
This Agreement incorporates by reference the FitMetrix Terms and Conditions.
“Application” means any application that you develop using the FitMetrix API to use, search, display, upload, and/or modify the FitMetrix Content.
“FitMetrix Content” means all content, data, and other information made available on the FITMETRIX website and the consumer-facing downloadable mobile app made available by FitMetrix and known as the “FitMetrix App,” which allows consumers to monitor and track their exercise performance data among other things.
“FitMetrix Data” means any data or information FitMetrix obtains from its subscribers and/or end users.
“Service” means the FitMetrix services as defined in the FitMetrix Terms and Conditions.
Subject to the terms and conditions of this Agreement, FitMetrix grants you a revocable, limited, non-exclusive, non-sublicensable, non-transferable license to access and use the API solely for the purpose of developing, testing, displaying, and distributing your Application. FitMetrix may revoke this license at any time for any reason. You will not, and will not permit any person, directly or indirectly, to reverse engineer, disassemble, reconstruct, decompile, translate, modify, copy, rent, modify, or alter, other than as explicitly permitted hereunder, create derivative works of the API or any other portion of the Service.
FitMetrix reserves the right to modify the Service or the API (or any part thereof) at any time in its sole discretion. Upon release of any new versions of the API, FitMetrix reserves the right to require you to obtain and use the most recent version of the API in order to obtain functionality of your Application with the Service.
FitMetrix may, but is under no obligation to, provide basic technical support in connection with your use of the API. Any such support will be provided via web forums, FAQs, or other internet-based documentation made available to authorized developers in FitMetrix’s sole discretion.
You may develop, display or distribute Applications that interact with the API. You agree that you are solely responsible for any Application that you develop.
To prevent abuse and/or unnecessarily burdening the API, Fitmetrix reserves the right, in its sole discretion, to limit the number of API calls you may make during any given period. If you exceed the limit or otherwise abuse the API service, Fitmetrix will notify you and may suspend or block your access to the API. FitMetrix may limit the number of API calls you are permitted to make during any given period. FitMetrix will determine call limits based on various factors, including the ways your Applications may be used or the anticipated volume of use associated with your Applications. If you exceed the call limits established by FitMetrix, we reserve the right to suspend or terminate your access to the API in accordance with Section 11.
You acknowledge and agree that the Service, the FitMetrix Content, including FitMetrix’s trademarks and logos, and the API are protected by applicable intellectual property laws and treaties (whether those rights happen to be registered or not, and wherever in the world those rights may exist). As between you and FitMetrix, the Service, the FitMetrix Content, including FitMetrix’s trademarks and logos, and the API, together with any and all intellectual property rights contained in the foregoing, are and will at all times remain the sole and exclusive property of FitMetrix. You agree that at no time during or after the termination of this Agreement will you attempt to register any trademarks (including domain names) that are derived from or confusingly similar to those of FitMetrix, or will you buy or otherwise arrange to use any such domains to redirect internet content to your site. All uses by you of FitMetrix’s logos or trademarks shall inure to the sole benefit of FitMetrix.
You are responsible for your own conduct, and the conduct of any third party accessing the API on your behalf, while using the API and for any consequences thereof. You will use the API only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines provided by FitMetrix, as they may be amended from time to time. In addition to the other restrictions contained herein, you agree that when using the API, you will not do the following, attempt to do the following, or permit your end users or other third parties to do the following:
You may work with third party service providers as necessary to facilitate your performance and obligations under this Agreement only if you require any such service provider to be bound by conditions and restrictions at least as protective of FitMetrix and its subscribers and end users as set forth in this Agreement. You acknowledge and agree that you shall be fully responsible for any act or omission by any service provider you use to facilitate your performance or obligations hereunder. Any such act or omission that amounts to a breach of this Agreement will be deemed a breach by you.
FitMetrix calculates and bills its fees and charges on a monthly basis. Commencing thirty (30) days from the date you receive access to subscriber data (“Effective Date”) and continuing on the same day of the month as the Effective Date for each calendar month thereafter and continuing until the Termination Date, you shall pay FitMetrix any fees charged under this Agreement, as more fully described at [link], as may be updated by FitMetrix, in its sole discretion, from time to time. Changes to the fees are effective thirty (30) days after being posted at [link]. Your continued use of the API means you accept the updated fees. Usage fees, if any, will be invoiced on a monthly basis for activity from the previous calendar month. In addition to the API fees, you will be responsible for all other fees associated with use of any FitMetrix API. All fees made by you under this Agreement will exclude, and you will pay, any taxes associated with such fees, your Application, or this Agreement.
We may make available third party products or services, including, for example, third party applications, implementation and other consulting services, or enable you to integrate/interact with, source or import data from third parties, such as business/data management solutions and platforms (collectively “Third Party Services”). Any use by you of such Third Party Services, and any exchange of data between you and any provider of such Third Party Services, is solely between you and the applicable provider of Third Party Services. You use Third Party Services at your own risk and we disclaim all liability related thereto. We do not warrant or support Third Party Services, whether or not they are designated by us as “certified” or otherwise.
THE API, THE SERVICE AND ANY AND ALL FITMETRIX CONTENT AND FITMETRIX DATA ARE PROVIDED ON AN "AS IS" BASIS WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITMETRIX AND ITS SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE API, THE SERVICE, FITMETRIX CONTENT, FITMETRIX DATA, AND ANY OTHER SERVICES PROVIDED BY FITMETRIX, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND QUIET ENJOYMENT. FITMETRIX DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE API WILL BE UNINTERRUPTED, ERROR FREE, SECURE, TIMELY, COMPLETE, RELIABLE, OR CURRENT. FOR THE AVOIDANCE OF DOUBT, YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT DOES NOT ENTITLE YOU TO ANY SUPPORT FOR THE API. NO ADVICE OR INFORMATION, WHETHER ORAL OR IN WRITING, OBTAINED BY YOU FROM US WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT FITMETRIX SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE FITMETRIX API, THE SERVICE, THE FITMETRIX CONTENT OR THE FITMETRIX DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES LOST PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT FITMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL FitMetrix BE LIABLE TO YOU FOR ANY AMOUNT.
To the maximum extent permitted by applicable law, you hereby release and waive all claims against FitMetrix, and its subsidiaries, affiliates, directors, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising from or in any way related to your use of the FitMetrix API. If you are a California resident, you expressly waive your rights under California Civil Code 1542, which states, “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.” You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
You shall indemnify, defend and hold harmless FitMetrix and its subsidiaries, affiliates directors, officers, employees, successors and assigns from and against any and all judgments, settlements, damages, penalties, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any third party claim relating to your breach or alleged breach of this Agreement.
“Confidential Information” includes all information provided by FitMetrix to you under these this Agreement, including without limitation, subscriber data, business plans and processes, and any other information which should be reasonably considered to be confidential in nature. You will not use or disclose Confidential Information other than as required to perform under this Agreement or as otherwise expressly permitted by this Agreement. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that FitMetrix will be entitled (without waiving any other rights or remedies) to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond. Any information provided by you to FitMetrix hereunder is considered by FitMetrix to be non-confidential. FitMetrix has no duty, express or implied, to pay any compensation for the disclosure or use of any such information provided by you to FitMetrix. You acknowledge and agree that any information you provide to FitMetrix is solely considered a business relationship under this Agreement and you have no expectation of payment.
You may promote your Application, including talking to traditional and online media and your users about your Application, so long as you do so truthfully and without implying that your Application is created or endorsed by FitMetrix and/or its subsidiaries, affiliates directors, officers, employees, successors or assigns. You may not issue any formal press release relating to this Agreement or your relationship with FitMetrix without FitMetrix’s prior written consent. FitMetrix reserves the right to issue publicity and promotional materials mentioning and/or describing your Application without your consent.
Unless specifically agreed in writing between you and MINDOBDY, in relation to data that are subject to European Economic Area data protection rules, you acknowledge and agree that you act as an independent controller (i.e., not as a processor to FitMetrix), without prejudice to any use or licensing restriction or condition under the Agreement. You are responsible for ensuring that any contractual arrangements required by applicable law are in place with API developers, including necessary approvals from any Third Party Services that you use and any relevant data processing and transfer agreement between (i) a FitMetrix subscriber and you (where you are a third party developer), or (ii) a third party developer and you (where you are a FitMetrix subscriber), and that FitMetrix may deny or revoke access to the API if you do not do so.
FitMetrix shall have the right to audit your compliance with payments, copyright, Confidential Information, and any other restrictions and/or obligations in this Agreement.