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Terms of Use

Effective Date: May 21, 2014

These terms of use (“Terms of Use”) are a legal agreement concluded between you (“Licensee”) and BodyWise Digital Pty Ltd, registered in Australia under Australian law (“Licensor”) for the BodyWise app (“Service”).  The BodyWise mobile application, software, design, servers, data, user input, content and associated services (collectively “Software and Services” or “App”) and the website available at bodywiseapp.com are owned and operated by the Licensor and are licensed to you in accordance with the terms of this Terms of Use.

The Licensor licenses use of the Service to the Licensee on the basis of these Terms of Use. The Licensor does not sell the Service to the Licensee. The Licensor remains the owner of the Service at all times.

By downloading, installing and using the Service, the Licensee agrees to the terms and conditions of these Terms of Use which shall bind the Licensee. The terms and conditions of these Terms of Service include, in particular, disclaimer of warranty in Section 5 and limitation of liability in Section 6.

If the Licensee does not agree to the terms and conditions of these Terms of Use, the Licensor does not license the Service to the Licensee and the Licensee must refrain from downloading, installing and using the Service. The Service can only be downloaded, installed and used in accordance with these Terms of Use.

1.    Scope of License

1.1 The Licensor hereby grants to the Licensee a non-exclusive, non-transferable license to use the Service on the terms and conditions of these Terms of Use (“License”). The License shall remain in force subject to the payment of license fees, if any, unless terminated in accordance with Section 8.

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.

You may be required to pay a fee in order to access certain features of the App otherwise not available upon download. If you subscribe to the App by providing your Apple ID, or allow the Licensor to facilitate payments through a third party payment processor, including but not limited to the Apple iTunes Store, you acknowledge and agree that the Licensor does not own or control such third parties or third party payment processors and will not be held liable for any claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys fees, arising out of or in relation to your use of such third party services, products, or payment processing. You understand and agree that any purchase made in the App may be processed by someone other than the Licensor. You are advised to read the terms of use agreement of any such third party, including any third party payment processor.

3. Consent to processing of data

Licensor may process personal data in accordance with the Licensor’s Privacy Policy, which among other things explains how and for which purposes data is processed, and the controls available when you use the Service.

Refer to www.bodywiseapp.com/privacy-policy/ for the Licensor’s Privacy Policy

4. Restrictions

Except as expressly set out in these Terms of Use or as permitted by applicable law, the Licensee undertakes not to:

(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.

By submitting User Generated Content to the Software and Services, you grant The Licensor a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to access, analyze, and interpret your User Generated Content for the customary and intended purposes of the Software and Services and any purpose related thereto, including, without limitation, to reproduce, prepare derivative works, distribute copies, perform, display, and use any of the User Generated Content in the App, consistent with the terms of the Privacy Policy. These purposes may include, but are not limited to, improving the Software and Services and/or develop new features, measure usage of the Software and Services, and publish summaries online or offline. You agree to waive all moral rights in and to your User Generated Content across the world, whether you have or have not asserted moral rights in or to your User Generated Content. By submitting User Generated Content to the Software and Services, you further agree to waive all rights of publicity or privacy with respect to the User Generated Content submitted.

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;

(b) if legally incompetent, has obtained a verifiable consent from his or her legal guardian(s), as required under applicable law, to accept the terms and conditions of these Terms of Use.

9. Termination

9.1 The License is effective until terminated by the Licensee or the Licensor. The Licensee’s rights under the License shall terminate automatically without notice from the Licensor if the Licensee fails to comply with any term or condition of these Terms of Use.

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

10.1 The Licensor may transfer its rights and obligations under these Terms of Use to another person. The Licensee may not transfer his or her rights or obligations under these Terms of Use to another person.

10.2 Each of the conditions of these Terms of Use operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

10.3 The laws of Australia, excluding its conflict of law rules, govern these Terms of Use and the Licensee’s use of the Service. The Licensee’s use of the Service may also be subject to other local, state, national or international laws. To the extent not prohibited by applicable law, the courts of Australia shall have jurisdiction.

11. Variations

11.1 The Licensor is entitled to revise these Terms of Use at any time. The Licensor shall notify the Licensee of any revisions with reasonable notice, at the Licensor’s sole discretion, through the Service, by email, via an online service or otherwise, or using any combination of the foregoing.

11.2 If the Licensee does not agree to the revised Terms of Use, he or she will not be bound by them if the Licensee ceases all use of the Service and destroys all copies, full or partial, of the Service in the Licensee’s possession. The fourth paragraph of Section 8.4 shall apply to the refund of license fees.

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
Australia