THIS USER AGREEMENT (THE “USER AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND FITLINXX, INC. (“FITLINXX”, WE” OR “US”). BY CHECKING THE “Agree to Terms of Use” BOX YOU ARE INDICATING THAT YOU HAVE READ THIS USER AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. THIS USER AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF THE FITLINXX SERVICES THAT YOU HAVE SELECTED (THE “USER SERVICES”) USING THIS WEB SITE (THE “SITE”). IF YOU DO NOT AGREE TO THE TERMS OF THIS USER AGREEMENT, YOU SHOULD CLICK THE “Cancel” BUTTON AND STOP THE USER REGISTRATION PROCESS.

WE MAY FROM TIME TO TIME AMEND, SUPPLEMENT OR MODIFY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF WE MAKE MATERIAL CHANGES TO THIS USER AGREEMENT, WE WILL POST AN UPDATED VERSION OF THIS USER AGREEMENT AND WE MAY PROVIDE YOU WITH FURTHER NOTICE OF THE CHANGES VIA EMAIL. NOTWITHSTANDING THE FOREGOING, IT IS YOUR RESPONSIBILITY TO CHECK THIS USER AGREEMENT PERIODICALLY FOR CHANGES. YOUR CONTINUED USE OF ANY USER SERVICES FOLLOWING THE POSTING OF ANY UPDATED USER AGREEMENT CONSTITUTES YOUR ACCEPTANCE TO BE BOUND BY THE TERMS AND CONDITIONS OF SUCH UPDATED USER AGREEMENT. ANY AND ALL USE OF THE USER SERVICES AFTER THE POSTING OF AN UPDATED USER AGREEMENT WILL BE SUBJECT TO THE TERMS AND CONDITIONS OF SUCH UPDATED USER AGREEMENT.

Authorized Users: You hereby represent and agree that (i) you are a natural person and (ii) you are a registered user of the User Services.

User Account and Password: As a registered user of the User Services, you must establish an account. You are solely responsible for protecting the confidentiality of such account, including, but not limited to, your password. You should never disclose your account information or password to anyone. YOU ARE SOLELY RESPONSIBLE FOR ANY ACTIVITIES WHICH OCCUR THROUGH YOUR ACCOUNT. You agree to immediately notify us of any unauthorized use of your account. WE ARE NOT RESPONSIBLE FOR ANY LOSSES ARISING OUT OF UNAUTHORIZED USE OF YOUR ACCOUNT.

Your Responsibilities; Guidelines. You will comply with all applicable local, state, federal, and foreign laws in using the User Services and, if using the User Services outside of the United States, not use the User Services in a manner that would violate any federal or state laws of the United States if conducted therein. You shall use the User Services solely for your personal use and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the User Services available to any third party; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the User Services or the data contained therein; or (vi) attempt to gain unauthorized access to the User Services or its related systems or networks.

Permitted Uses: Subject to the terms and conditions of this Agreement and the Terms, we hereby grant you a limited, nontransferable, nonexclusive, revocable, nonsublicenseable, personal right to access and use the User Services we make available via the Site, solely for your personal, noncommercial use. FitLinxx and its licensors retain all right, title, and interest in and to the User Services and any and all content or other work of authorship made available through the User Services not expressly granted to you herein.

Additional Restrictions: The limited license granted to you pursuant to this User Agreement does not include any resale or commercial use of the User Services or any content made available through the User Services. You may not reproduce, duplicate, copy, sell, resell, modify, reverse engineer, decompile, disassemble or create derivative works of or otherwise exploit for any commercial purpose the User Services, the content thereof, or any portion of the foregoing, without express written consent of FitLinxx. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of FitLinxx and our affiliates or licensors without our express written consent. None of the User Services or the content thereof may be retransmitted without the express written consent of FitLinxx, nor may it be used on any other web site or stored on any networked computer environment. You may not use any metatags or any other "hidden text" utilizing FitLinxx's name or trademarks without the express written consent of FitLinxx. Any unauthorized use terminates the permission and/or license granted by FitLinxx without the need for further action by FitLinxx.

Customer Service: If you have any questions or concerns about your account, please contact Customer Service at actihealth3@fitlinxx.com.

Your Information: You agree to provide us with accurate and complete information required to register for the User Services and at other times as required in connection with using the services offered on the Site (“Registration Information”). You also agree to maintain and update your Registration Information as necessary to keep it accurate, current and complete. You agree that we may collect, use and transfer your Registration Information subject to the terms of our Privacy Policy.

General Disclaimer: YOU ACKNOWLEDGE AND AGREE THAT THE USER SERVICES AND ALL CONTENT THEREOF ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING ANY OF THE

Health Disclaimer. The User Services and this site provide physiological data about your body along with information applications and content published over the Internet and are intended only to assist users in their personal health, fitness and wellness efforts. FitLinxx is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in the USER services or this site should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician before beginning any health, fitness & wellness related effort or regimen. FitLinxx recommends that every individual seek professional medical advice prior to initiating any form of health, fitness & wellness related effort or regimen.

Limitation of Liability: YOUR SOLE REMEDY FOR DISSATISFACTION WITH YOUR USE OF THE USER SERVICES AND/OR OUR CONTENT IS TO STOP USING THE USER SERVICES AND/OR THE CONTENT. YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL THE FITLINXX PARTIES BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE USER SERVICES OR ANY OF THE CONTENT, INCLUDING: LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; ANY FAILURE OF PERFORMANCE, DENIAL OF SERVICE, ATTACK, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OR COMPUTER VIRUS; OR THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OR USE OF YOUR INFORMATION, EQUIPMENT OR PROPERTY, EVEN IF THE FITLINXX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE EXCLUDED DAMAGES. FURTHER, THE FITLINXX PARTIES WILL NOT BE RESPONSIBLE FOR ANY FAILURE TO COMPLY, BY YOU OR ANY THIRD PARTY, WITH THIS USER AGREEMENT OR WITH APPLICABLE FEDERAL, STATE AND LOCAL LAWS.
THESE LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF: (I) ANY NEGLIGENCE OR GROSS NEGLIGENCE OF ANY FITLINXX PARTY OR (II) WHETHER THE LIABILITY SOUNDS IN NEGLIGENCE, STRICT LIABILITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY; AND WILL REMAIN IN EFFECT EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF WARRANTIES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN THOSE STATES, THE FITLINXX PARTIES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE FITLINXX PARTIES’ AGGREGATE LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100).

Indemnification: You agree to defend, indemnify and hold the FitLinxx Parties harmless from and against any and all claims, damages, costs, and expenses, including attorneys' fees, arising from or related to your use of the User Services and/or any content thereof.

Termination: You acknowledge and agree that FitLinxx may suspend or terminate your access to and use of the User Services at any time, with or without cause, in FitLinxx's absolute discretion and without notice, including for any breach of this User Agreement. The relevant version of this User Agreement shall continue to apply to all prior use of the User Services. The following paragraphs of this User Agreement shall survive termination of your use or access to the User Services: paragraphs concerning indemnification, disclaimers, limitations of liability, termination and general provisions and any other provision that by its terms survives termination of your use of or access to the User Services.

Applicable Law: The User Services is created and controlled by FitSense and/or its affiliates in the Commonwealth of Massachusetts, USA, without regard to its conflict of laws rules. As such, the laws of the Commonwealth of Massachusetts will govern this User Agreement, without giving effect to any principals of conflict of laws. All claims and disputes arising out of this User Agreement or the User Services, other than action for specific performance or injunctive relief brought by FitSense, shall be exclusively brought in the federal, state, or local courts located in Boston, MA, USA and, with regard to such claims and disputes, you hereby irrevocably (i) submit to the exercise of personal jurisdiction over you by those courts and (ii) waive any jurisdictional, venue, or inconvenient forum objections to such courts.

General Provisions: Failure by FitLinxx to enforce any provision(s) of this User Agreement shall not be construed as a waiver of any provision or right. In the event that any portion of this User Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. This User Agreement constitutes the entire agreement between you and FitLinxx with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreement not specifically incorporated herein. Any claim under this User Agreement must be brought within one (1) year after the date upon which the cause of action arose.