1. Confidential Information.
1.1 Each party ("Receiving Party") acknowledges that it may receive confidential information from other party ("Disclosing Party"). In our case, we claim as "Confidential Information" the algorithms, logic, design, and coding methodology embodied in the Services, our website, and allsoftware and technology we use to provide the Services. In your case, you claim as "ConfidentialInformation" the information you provide in your use of the Services, including without limitation, your login ID, password, account information, and Non-Public Personal Information (defined below). The Receiving Party agrees that it will not use in any way, for its own account or the account of any third party, the Confidential Information of the other party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the Disclosing party's Confidential Information
1.2 The Receiving Party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the Disclosing party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information in at least the same manner as is necessary to protect its own Confidential Information.
1.3 Confidential Information will not include information that: (i) is known to the Receiving Party prior to receipt from the Disclosing Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that such Receiving Party gives the Disclosing Party written notice thereof as soon as practicable and reasonably cooperates with the Disclosing Party to contest such disclosure.
2. Service Fees; Taxes. You will pay fees for Services in accordance with the applicable order form ("Service Fees"). You also agree to pay, at our then current rates, for all goods or services that you request from us and that are not included in the Services. Payment is due upon receipt ofour invoice. Fees are exclusive of sales, use, or other transaction-based taxes, and you agree to pay all such charges either as levied by taxing authorities or invoiced by us. Subsequent to the initial term specified in the applicable order form signed by the parties, we may increase Service Fees at any time effective thirty (30) days after providing notice to you; provided, however, that any such increase will not occur more than once in a consecutive twelve (12) month period.
3. Term. The initial term of this Agreement will be determined by the applicable order form. Theinitial term hereof shall automatically renew for successive terms unless either of us notifies the other in writing not less than thirty (30) days prior to the expiration of the current term of its intention not to renew. Either of us may choose not to renew without cause or for any reason.
4. Termination For Convenience. You may terminate this Agreement at any time for convenience by thirty (30) days prior written notice.
5. Termination for Cause. Either of us may terminate this Agreement for cause if (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach.
6. Survival. The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability, and indemnities, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the intellectual property rights,including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money due to either party.
7. Technical Support, Training, and Consulting Services. During the term hereof, we will providetechnical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, we will provide such services on a time and materials ("T&M") basis; that is, (i) you will pay us for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be our then-current standard rates when such services are provided. Any monetary limit stated in an estimate for T&M services shall be an estimate only for your budgeting and our resource scheduling purposes. If the limit is exceeded, we will cooperate with you to provide continuing services on a T&M basis. We will invoice you monthly for T&M services. Charges shall be payable upon receipt of invoice. We reserve the right to require a non-refundable fee and/or cost deposit prior to commencement of services as well as a work order.
8. Limited Warranty; Disclaimers. We warrant that (i) we will undertake reasonable efforts to maximize uptime for the Services, except for routine maintenance, and (ii) the Services will be free of material defects and will conform to the descriptions provided in the applicable order form ("Limited Warranty"). Your sole and exclusive remedy for breach of this Limited Warrantyshall be the prompt correction of material defects and non-conforming Services at our expense.
9. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, WE DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE,OR 100% SECURE.
10. Consequential Damages Waiver. EXCEPT FOR ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGESARE BEING SOUGHT OR SUCH party's LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Liability Cap. Except for our confidentiality obligations, our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of Service Fees payable by you for the one (1) months immediately preceding the claim for such liability.
12. Proprietary Rights Ownership. We retain sole and exclusive ownership of all intellectual property rights embodied in the Services, our website, and all software and technology we use to provide the Services.
13. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to addresses indicated herein or designated in writing by either party to the other. Such notice will be deemed to be given when received.
14. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, you shall not assign this Agreement or any right or interest under this Agreement, without our prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
15. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God.
16. Arbitration. By agreeing to arbitration, you understand and agree that you are waiving your rights to maintain other resolution processes, such as a court action or administrative proceeding,to settle your disputes. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration underthe rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in State College, Pennsylvania. The arbitrator shall apply the laws of the State of Pennsylvania to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
17. Jurisdiction And Venue. The courts of State College, PA, USA and the nearest U.S. District Court in the State of PA shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.
18. Miscellaneous. This Agreement shall be construed under the laws of the State of Pennsylvania, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemedmodified to the extent necessary and possible to render it valid and enforceable. In any event, theunenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed below.
Fit Pro Evolution, Inc
Fit Pro Evolution, Inc
FIT PRO EVOLUTION, INC ("FIT PRO EVOLUTION, INC") IS WILLING TO GRANT YOURIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES ON THIS OMCHECKOUT.COM SITE DESCRIBED ON THE ACCOMPANYING ORDER FORM ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINEDIN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON "I ACCEPT", YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGALENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THESE TERMS. IF YOU DO NOTAGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON, THEN FIT PRO EVOLUTION, INC IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
SOFTWARE AS A SERVICE AGREEMENT
Effective Date: 11, 2020
THIS AGREEMENT is entered into as of 11, 2020 ("Effective Date")}, by and between Fit Pro Evolution, Inc, a Pennsylvania corporation with its principal office located at 286 WHITEHILL STundefined, Lemont, Pennsylvania 16851, ("Fit Pro Evolution, Inc"), and Fit Pro Evolution, Inc, an individual with offices located at User Addressundefined, User City, Pennsylvania User Zip ("Customer").
19. Services. Web services include access to our online service accessible through our OMCHECKOUT.COM website as identified on the applicable order form and any updates or upgrades to our services which may be generally released by us to all customers from time to time ("Services"). We reserve the right to update and modify the Services from time to time.
20. Provision of Online Services. Subject to the terms and conditions hereof, we shall provide, and we hereby grant a non-exclusive license, to you (defined below) to access and use the Services during the term of this Agreement only to the extent of authorized use specified in your order form for the Services. This Agreement provides for your use of the Services generated by our software, but it is not otherwise an agreement for the sale or license of any software. You may use the Services only for your internal business purposes of processing, storing and maintaining your data, and not for purposes of resale.
21. Restrictions on Use.
21.1 You agree that your use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations. Without limiting the generality of the foregoing, You will not: (a) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information in the Services except in accordance with accepted practices; (b) allow access to the Services other than the extent of authorized use specified in the applicable order form; (c) permit any third party to use or access the Services; (d) process or permit to be processed the data of any third party; or(e) to attempt to copy, archive, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the our technology.
21.2 In addition, you are not authorized to use the Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely at our sole discretion.
21.3 Your Account-Related Responsibilities. You are responsible for maintaining the confidentiality of your login ID, password, and any additional information that we may provide regarding accessing your account. If you knowingly share your login ID and password with another person who is not authorized to use the Services, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login ID, password, or account or any other breach of security.
22. Security. You will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Services, we will implement reasonable security procedures consistent with prevailing industry standards to protect your information on our site from unauthorized access in Internet data centers housed in asecure location in the United States (the "Data Security Standard"). Provided that we are in compliance with the Data Security Standard, the parties agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at thetime. We will promptly report to you any unauthorized access to your information on our site promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such information is required, you will be solely responsible for any and all such notifications at its expense.
22.1 "Non-Public Personal Information" means any of the following information received by us from you: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number.