AGREEMENT BETWEEN — USER AND FITMINDED
MODIFICATION OF THESE TERMS OF — USE FitMinded reserves the right to change the terms and conditions under which the FitMinded Web Site is offered, without notice, including but not limited to the charges associated with the use of the FitMinded Web Site.
LINKS TO THIRD PARTY SITES The FitMinded Web Site may contain links to other Web Sites (“Linked Sites”). The Linked Sites are not under the control of FitMinded and FitMinded is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. FitMinded is not responsible for webcasting or any other form of transmission received from any Linked Site. FitMinded is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by FitMinded of the site or any association with its operators.
NO UNLAWFUL OR PROHIBITED — USE As a condition of your use of the FitMinded Web Site, you warrant to FitMinded that you will not use the FitMinded Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the FitMinded Web Site in any manner which could damage, disable, overburden, or impair the FitMinded Web Site or interfere with any other party’s use and enjoyment of the FitMinded Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the FitMinded Web Sites.
— USE OF COMMUNICATION SERVICES The FitMinded Web Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the other FitMinded Web Site users (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information. Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents. Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer. Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages. Conduct or forward surveys, contests, pyramid schemes or chain letters. Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded. Restrict or inhibit any other user from using and enjoying the Communication Services. Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service. Harvest or otherwise collect information about others, including e-mail addresses, without their consent. Violate any applicable laws or regulations.
FitMinded has no obligation to monitor the Communication Services. However, FitMinded reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. FitMinded reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever. FitMinded reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FitMinded’s sole discretion. Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. FitMinded does not control or endorse the content, messages or information found in any Communication Service and, therefore, FitMinded specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Communication Service users are not authorized FitMinded spokespersons, and their views do not necessarily reflect those of FitMinded.
MATERIALS PROVIDED TO FITMINDED OR POSTED AT ANY FITMINDED WEB SITE FitMinded does not claim ownership of the materials you provide to FitMinded (including feedback and suggestions) or post, upload, input or submit to any FitMinded Web Site or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting FitMinded, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission. No compensation will be paid with respect to the use of your Submission, as provided herein. FitMinded is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in FitMinded’s sole discretion. By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
PHOTOGRAPHS By becoming a member of Fit Minded, you agree to allow your photo to be used for promotional purposes of the Fit Minded program, which is supported in part by the University of Nebraska at Omaha (applies to Level 2 and Alumni members only).
LIABILITY DISCLAIMER THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE FitMinded WEB SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. FitMinded AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE FitMinded WEB SITE AT ANY TIME. ADVICE RECEIVED VIA THE FitMinded WEB SITE SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION. FitMinded AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE FitMinded WEB SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. FitMinded AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FitMinded AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF — USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE — USE OR PERFORMANCE OF THE FitMinded WEB SITE, WITH THE DELAY OR INABILITY TO — USE THE FitMinded WEB SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE FitMinded WEB SITE, OR OTHERWISE ARISING OUT OF THE — USE OF THE FitMinded WEB SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FitMinded OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECA– USE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE FitMinded WEB SITE, OR WITH ANY OF THESE TERMS OF — USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE FitMinded WEB SITE.
TERMINATION/ACCESS RESTRICTION FitMinded reserves the right, in its sole discretion, to terminate your access to the FitMinded Web Site and the related services or any portion thereof at any time, without notice. In the event of termination, you are no longer authorized to have access to the site, and all limitations on FitMinded’s liability and on your use of FitMinded materials shall survive.
GENERAL To the maximum extent permitted by law, this agreement is governed by the laws of the State of Nebraska, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in Douglas County, Nebraska, U.S.A. in all disputes arising out of or relating to the use of the FitMinded Web Site. Use of the FitMinded Web Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FitMinded as a result of this agreement or use of the FitMinded Web Site. FitMinded’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of FitMinded’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the FitMinded Web Site or information provided to or gathered by FitMinded with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and FitMinded with respect to use of the FitMinded Web Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and FitMinded with respect to the FitMinded Web Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent an d subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.
COPYRIGHT AND TRADEMARK NOTICES: All contents of the FitMinded Web Site are: Copyright 2010 by FitMinded. All rights reserved.
TRADEMARKS The names of actual companies and products mentioned herein may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent. THE FOLLOWING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING THE SERVICE PROVIDERS REFERENCED BELOW THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS REQUESTS FOR TECHNICAL ASSISTANCE, REPORTS OF EMAIL AB– USE, AND OTHER REPORTS, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS. Written notification must be submitted to the following Designated Agent: Service Provider(s): FitMinded Name of Agent Designated to Receive Notification of Claimed Infringement: J. Huberty Full Address of Designated Agent to Which Notification Should be Sent: PO Box 24949, Omaha, Nebraska 68124 Email Address of Designated Agent: firstname.lastname@example.org To be effective, the Notification must include the following: A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; Information reasonably sufficient to permit the service provider to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted; A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receipt of the written Notification containing the information as outlined in 1 through 6 above:
Service Provider shall remove or disable access to the material that is alleged to be infringing; Service Provider shall forward the written notification to such alleged infringer (“Subscriber”); Service Provider shall take reasonable steps to promptly notify the Subscriber that it has removed or disabled access to the material.
Counter Notification: To be effective, a Counter Notification must be a written communication provided to the Service Provider’s Designated Agent that includes substantially the following: A physical or electronic signature of the Subscriber; Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which the Service Provider may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person
Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above:
Service Provider shall promptly provide the Complaining Party with a copy of the Counter Notification; Service Provider shall inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days; Service Provider shall replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter Notification, provided Service Provider’s Designated Agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Service Provider’s network or system.