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LICENSE AGREEMENT FOR TIVITY SOFTWARE LLC’S XTIVITY (TM) SOFTWARE
IMPORTANT—READ CAREFULLY: This End-User License Agreement ("Agreement") is a legal contract between you (either an individual or a single business entity) and Tivity Software LLC (“Tivity”) for the Tivity software product identified above, which includes computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (the "Software Application").
BY CLICKING THE [ACCEPTED] ICON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION, AND EXIT NOW.
You are entitled to receive a full refund of any payment made for the Software Application by so requesting and returning any media and materials in unopened, unused condition within 14 (fourteen) days after date of payment.
LICENSE TERMS
Following acceptance of this Agreement, you may install one (1) registered copy of the Software Application for your own personal, individual use, at which time you will be required to obtain through Tivity’s Software Activation System an Activation Code, unique for the Software Product licensed by you, for activating the Software Application. Upon receipt of the unique Activation Code you may execute and run the Software Application.
Use on a PC. You may install the single registered copy on one hard disk or other storage device for one computer, and you may access and use the Software Application at that location so long as only one copy of the Software Application is in operation. If you are a private business rather than an individual, you may authorize the personnel associated with your business to use the Software Application, but only one person at a time, on one computer at a time. The primary user of the computer on which the Software Application is installed may make a second copy for his or her exclusive use on a backup or portable computer, so long as each registered copy of the Software Application is used on only one computer at a time.
Use on a Network. You may store, install and access the registered version of the Software Application through an internal network, provided that you must obtain and pay for a license for each workstation that will access the Software Application through the network. For instance, if 5 different workstations will access the Software Application on the network, each workstation must have its own paid-up license, regardless of whether the workstations use the Software Application at different times or concurrently.
OTHER LIMITATIONS
You may not rent, lease, lend, or otherwise distribute the Software Application.
You may not reverse engineer, decompile, or disassemble the Software Application.
Tivity may provide you with support services related to the Software Application ("Support Services"). Use of Support Services is governed by Tivity policies and programs described in the user manual, in "online" documentation, and/or in other Tivity-provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software Application and subject to the terms and conditions of this Agreement. With respect to technical information you provide to Tivity as part of the registration of your license to the Software Application or in connection with the Support Services, Tivity may use such information for its business purposes, including for product support and development.
Without prejudice to any other rights, Tivity may terminate this Agreement if (i) you or any third party using the Software Product licensed by you fails to comply with any of the terms and conditions of this Agreement, (ii) you purchased or distribute the Software Application under fraudulent means (pirated copies) or in violation in any U.S. or International Copyright Laws, or (iii) you do not pay Tivity for the Software Product. In such event, you must destroy all copies of the Software Application and all of its component parts, and Tivity may suspend, disable or deactivate your use of the Software Application with or without notice.
MACROMEDIA® FLASH® PLAYER
Your use of the Macromedia® Flash® Player software (© 1995–2004 Macromedia, Inc., 600 Townsend Street, San Francisco, CA 94103 USA. All Rights Reserved) that is distributed in combination with the Software Application is limited by the restrictions set out in the Flash® Player, Shockwave® Player License and Distribution Agreement as provided at http://www.macromedia.com/support/shockwave/info/licensing/license.html. Macromedia, Flash and Shockwave are trademarks or registered trademarks of Macromedia, Inc. in the United States and/or other countries.
GOVERNING LAW
This Agreement is deemed to have been entered into in the State of Alabama, United States, and its interpretation, construction, and the remedies for its enforcement or breach are to be applied pursuant to and in accordance with the laws of the State of Alabama. The parties hereby exclude any application of The United Nations Convention on Contracts for the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods, and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
PROPRIETARY RIGHTS
Copyright. All title, copyrights (including, without limitation, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software Application), patents, trade secrets, and all other intellectual property rights of whatever nature in the Software Application, including in the accompanying media and printed materials, all customizations, enhancements, modifications, improvements, derivations, or other changes made to the Software Application, and in any copies of the Software Product are owned by Tivity. The Software Application is protected by copyright laws and international treaty provisions. Therefore, you must treat the Software Application like any other copyrighted material, subject to the provisions of this Agreement.
Trademarks. “TIVITY SOFTWARE”, “TIVITY” and “XTIVITY” are trademarks of Tivity. No right, license, or interest to these trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to the trademarks.
U.S. Government Restricted Rights. The Software Application is a "commercial item" as that term is defined at 48 C.F.R. 2.101 (October 1995) comprising "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item and only subject to the terms and conditions and all restrictions set forth in the license agreement. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 (June 1995), all U.S. Government users and licensees acquire the software and its associated documentation with only those rights and subject to the restrictions set forth in the license agreement. Notwithstanding the foregoing, the Software may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 (June 1987) or DFARS Subpart 227.4 (Oct. 1988). Contactor/manufacturer is Tivity Software LLC, 511 Highland Park Circle Birmingham, Alabama 35242.
Submissions. Should you decide to transmit to Tivity`s website by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, you agree such submissions are unrestricted and shall be deemed non-confidential and you automatically grant Tivity and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.
DISCLAIMER OF WARRANTY
THIS SOFTWARE AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS." TIVITY AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SUCH FILES. TIVITY AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. You must assume the entire risk of using the Software Application.
ANY LIABILITY OF TIVITY AND ITS SUPPLIERS FOR A DEFECTIVE COPY OF THE SOFTWARE APPLICATION WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE SOFTWARE APPLICATION WITH ANOTHER COPY OR REFUND OF THE INITIAL LICENSE FEE TIVITY RECEIVED FROM YOU FOR THE DEFECTIVE COPY OF THE PRODUCT. IN NO EVENT WILL AUTO F/X AND ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN TIVITY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to you.
MISCELLANEOUS
You agree that the invalidity, in whole or in part, of any provision, promise, undertaking, section or word, of this Agreement shall not affect the validity of the remaining portions thereof; that this Agreement may only be terminated or modified by Tivity; that this Agreement will be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns; that any breach of this Agreement shall entitle Tivity, in addition to any other legal remedies available to it, to apply to a court of competent jurisdiction to enjoin any violation of this Agreement and/or to recover damages for any breach of this Agreement, and to recover all costs of such action, including a reasonable attorneys’ fee., and that this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter of this Agreement.