Effective Date: May 21, 2014
1. Scope of License
1.2 Under the License, the Licensee may:
(a) download, install and use the Service for the Licensee’s personal purposes on any compatible device owned or controlled by the Licensee; and
(b) receive and use any updates to the Service as may be provided by the Licensor from time to time.
1.3 The Licensor reserves the right to change, suspend, remove or disable access to the Service at any time without notice. In no event shall the Licensor be liable for the removal or disabling of, or for imposing limits on, access to or use of the Service. The fourth paragraph of Section 8 shall apply to the refund of license fees.
2. The BodyWise app
The Service is a mobile application that allows you to monitor, draw conclusion and receive analysis of lifestyle and fitness in order to improve understanding of your life and actions that you can take to meet your personal goals.
Depending on the services and information that you give us access too, the information that you see displayed in the App can come from a variety of different sources including from third party data generating sources (e.g. Fitbit, Jawbone) and other sources.
3. Consent to processing of data
(a) copy the Service except where such copying is incidental to normal use of the Service;
(b) rent, lease, lend, sell, redistribute or sublicense the Service;
(c) make alterations to, modifications of or derivative works based on the whole or any part of the Service, nor permit the Service or any part of it to be combined with or become incorporated in any other service or program;
(d) disassemble, decompile, reverse engineer the whole or any part of the Service, nor attempt to do any such thing except to the extent that such actions cannot be prohibited under applicable law;
(e) provide or otherwise make available the Service, in whole or in part, in any form to any person for commercial purposes;
(f) use the Service for any illegal activities, such as infringing or violating the rights of any other party; and
(g) exploit the Service in any unauthorized way whatsoever.
5. User Generated Content
The Licensor may provide you with the ability to submit user generated content to the Software and Services, which may include but is not limited to text, ratings, notes, photos, instructions, activity data, weight, health status, mood and other content (collectively “User Generated Content”). The Licensor provides you the ability to add User Generated Content from unrelated third party data generating sources (e.g. Fitbit, Jawbone) and other sources. Except as otherwise licensed herein, you own all rights in and to your User Generated Content.
You acknowledge and agree that you are solely responsible for any User Generated Content that you submit to the Software and Services. You warrant that you are the exclusive owner of all right, title, and interest in and to any User Generated Content that you submit to the Software and Services and that you have the right to license and/or convey all right, title, and interest in and to the User Generated Content free and clear of any and all claims, liens, or encumbrances. You warrant that any User Generated Content that you submit to the Software and Services will not violate the rights of third parties, including, but not limited to, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
5. Intellectual Property Rights
5.1 The Licensee acknowledges that:
(a) all intellectual property rights in the Service belong to the Licensor;
(b) rights in the Service are licensed, not sold, to the Licensee;
(c) the Licensee has no rights in or to the Service other than the License; and
(d) the Licensee has no right to have access to the Service in source code form.
5.2 In the event of any third party claim that the Service or the Licensee’s possession and use of the Service infringes that third party’s intellectual property rights, the Licensor shall be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
6. No warranty
The Licensee expressly acknowledges and agrees that use of the Service is at the Licensee’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with the Licensee. To the maximum extent permitted by applicable law, the Services are provided “as is” and “as available”, with all faults and without warranty of any kind, and the Licensor hereby disclaims all warranties and conditions with respect to the Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. The Licensor does not warrant against interference with the Licensee’s enjoyment of the Service, that the functions contained in, or services performed or provided by, the Service will meet the requirements of the Licensee, that the operation of the Service will be uninterrupted or error-free, or that defects in the Service will be corrected. No oral or written information or advice given by the Licensor or its authorized representative shall create a warranty. Should the Service prove defective, the Licensee assumes the entire cost of all necessary servicing, repair or correction.
7. Limitation of liability
7.1 The Licensee acknowledges that the Service has not been developed to meet the individual requirements of the Licensee, and that it is therefore the Licensee’s responsibility to ensure that the facilities and functions of the Service meet the requirements of the Licensee.
7.2 The Licensor is not in any way responsible for the use made by the Licensee of the Service. The Licensee understands that certain risks are inherent in all physical activities, and the Licensee assumes sole responsibility for any change in his or her behavior. It may be necessary to consult a physician before increasing one’s physical activity.
7.3 To the extent not prohibited by law, in no event shall the Licensor be liable for personal injury, or any incidental, special, indirect, consequential or punitive damages whatsoever, including, without limitation:
(a) loss of profit,
(b) loss of physical or mental capability,
(c) loss of business,
(d) business interruption,
(e) loss of business opportunity,
(f) loss of data or
(g) any other commercial damages or losses
arising out of or related to the Licensee’s use or inability to use the Service, however caused, whether in contract, tort or otherwise and even if the Licensor has been advised of the possibility of such damages.
7.4 In no event shall the Licensor’s total liability to the Licensee for all damages exceed the amount of fifty Australian dollars ($50.00).
7.5 The Licensor is responsible for addressing any claims of the Licensee or any third party relating to the Service or the Licensee’s possession and/or use of the Service, including, but not limited to: (a) product liability claims, (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement and (c) claims arising under consumer protection or similar legislation.
8. Conditions precedent
8.1 The Licensee represents and warrants that he or she:
(a) is legally competent;
9.2 If any license fees have been paid by the Licensee for use of the Service, termination shall take effect 30 days after the notice of termination was sent to the other party in writing. Otherwise the termination shall take effect immediately.
9.3 Upon termination of the License, the Licensee shall cease all use of the Service and destroy all copies, full or partial, of the Service in the Licensee’s possession.
9.4 If any license fees have been paid by the Licensee for use of the Service and the License is terminated by the Licensor, the Licensor shall recompense the Licensee pro rata for his or her loss.
10. Other terms
12. Medical warnings
The information should not be considered complete or up to date, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of licensed doctor, physician or other qualified health care provider. If you have a medical emergency, contact your doctor or 911. The Licensor does not recommend or endorse any specific treatment, tests, physicians, products, procedures, opinions, or other information on the App. Your reliance upon any information provided by the Licensor on this App is solely at your own risk.
By using the Service, the Licensee recognizes that:
12.1 The Licensor and it’s Service are not able to provide the Licensee with Medical advice regarding my medical fitness and that this information is used as a guidance to the limitations of the Licensee’s exercise ability.
12.2 Any activity that the Licensee undertakes while using the Service or under instruction from the Service may be dangerous and that by participating in the activity the Licensee is exposed to certain risks.
12.3 The Licensee is aware of the possible health and safety risks associated with participating in physical exercise and consent to any reasonable exercise which may from time to time be strenuous.
12.4 The Licensee will abstain from physical exercise if the Licensee becomes aware of any relevant medical or health problems that the Licensee is currently or likely to suffer from until obtaining clearance from a registered medical practitioner to participate in physical exercise.
13. Developer name and address
The Licensor is solely responsible for the Service and its content. Any questions, complaints or claims with respect to the Service should be directed to:
BodyWise Digital Pty Ltd
48 Studley St
Abbotsford, Vic 3067