Effective Date: 11/08/2018
Last Updated Date: 07/12/2018
These supplemental terms (the “Supplemental Terms”), together with the overhead agreement which refers to this supplement as being applicable between the Parties (the “FitMetrix Terms of Service”), govern your use of the FitMetrix branded mobile app (“BMA”) and related Services. Capitalized terms used in these Supplemental Terms but not otherwise defined herein will have the meaning given to them elsewhere in the FitMetrix Terms of Service.
THESE SUPPLEMENTAL TERMS ARE EFFECTIVE BETWEEN YOU AND FITMETRIX AS OF THE DATE YOU INDICATE YOUR ACCEPTANCE, EITHER BY EXECUTING AN ORDER FORM THAT REFERENCES THESE SUPPLEMENTAL TERMS, BY REQUESTING AN APP AND OUR DELIVERY OF THE APP MATERIALS TO YOU THROUGH AN EMAIL AS FURTHER DESCRIBED BELOW, OR BY ACCESSING OR USING THE APPLICABLE APPS OR SERVICES, WHICHEVER COMES FIRST.
THESE SUPPLEMENTAL TERMS ARE NEEDED TO ADDRESS REQUIREMENTS AND PROCESSES IMPOSED BY THIRD PARTIES (E.G., APP STORES DESCRIBED BELOW) AND OTHER MATTERS. IF YOU DO NOT AGREE TO THESE SUPPLEMENTAL TERMS, PLEASE NOTE THAT WE MAY NEED TO SUSPEND OR DISCONTINUE SERVICES, INCLUDING YOUR ACCESS AND USE OF BMA.
You acknowledge and agree that the use and availability of the Apps are dependent on the third party from whom You received the Apps license or who administers certain activities relating to the Apps, e.g., the Apple App Store, Google Play, or a similar source (“App Store”). You acknowledge that these Supplemental Terms and the FitMetrix Terms of Service are between You and FitMetrix and not with the App Store. As between FitMetrix and the App Store, FitMetrix, not the App Store, is solely responsible for the Services, including the Apps, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Apps. You agree to comply with, and your license to use the Apps is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies). You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Supplemental Terms and the FitMetrix Terms of Service and will have the right to enforce them.
In connection with the BMA (and other applicable Apps),
the App Store may (a) impose certain requirements or fees,
and/or (b) require You authorize FitMetrix to undertake certain activities to facilitate
Your access to or use of the Apps or FitMetrix’s performance of certain Services for You.
These third-party App Store requirements and fees may change over time and are outside the
control of MINDBODY. You agree to (i) comply with such then current requirements of App Stores,
(ii) pay such fees to the App Store, and (iii) authorize FitMetrix to undertake applicable activities
on your behalf and otherwise reasonably cooperate with and facilitate FitMetrix’s interactions with
the App Store, as and if necessary, for FitMetrix to provide the Services and make available the Apps.
For example, You will need to create an Apple ID and Apple developer account, pay Apple’s fees relating
thereto (if any), grant FitMetrix access as Your “contractor” to load and update the App code, and
accept and comply with Apple’s then current terms of use and other agreements, including updates
thereto, required by Apple. FitMetrix is excused from its performance and other obligations
relating to the Apps and the Services to the extent prevented from performing due to Your
failure to comply with this Section or the App Store’s refusal to provide FitMetrix required
access. FitMetrix will use commercially reasonable efforts to assist You with addressing these
App Store requirements through documentation or assistance programs as and if generally made available by FitMetrix.
If You request to receive or use the BMA or another applicable App, we may send You an
email that contains a download link for the App and a guide to facilitate your set-up
and/or use of the App (the “App Materials”).
We may suspend or terminate Your access and/or use of the Apps (or any portion thereof) at any time without notice if we believe (a) that any activity or use of the Apps in connection with Your Account infringes the intellectual property rights of FitMetrix or any third party or otherwise violates any applicable laws, (b) that we are required to do so by law, or (c) You have not completed applicable App Store requirements or have not granted FitMetrix sufficient rights with the App Store for FitMetrix to provide the Services. Unless prohibited by law, we will use commercially reasonable efforts to provide prompt notice of any suspension or termination of Your access and/or use of the App.
You acknowledge and agree to use the Services only to send electronic messages to consumers or potential consumers that have directly consented to receive them and in accordance with applicable law and regulations as well as FitMetrix’s Privacy Annex.Transmission of unsolicited electronic messages via the Services is prohibited.
You acknowledge that the Apps is a Service as defined in the FitMetrix Terms of Service and that these Supplemental Terms are hereby incorporated into and made part of the FitMetrix Terms of Service as if signed by You notwithstanding anything to the contrary. These Supplemental Terms take precedence over any conflicting terms in the FitMetrix Terms of Services in connection with the subject matter of these Supplemental Terms. Except as expressly provided herein, any dispute or claim arising from or relating to these Supplemental Terms or the Apps is subject to the warranties and disclaimer, limitations and exclusions of liability, governing law and all other terms in the FitMetrix Terms of Service.