End User Beta Software License Agreement
CORE LLC Client Software
This End User Beta Software License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) and CORE LLC, a Delaware limited liability company (the “Company”) regarding your use of the Company’s beta version of its software application commonly known as “[Software Name]” (the “Beta Application”), and any associated cloud, server, or mobile-device software and user documentation, whether provided in “online” or electronic format (collectively, the “Beta Software”). BEFORE YOU SELECT “I AGREE” DURING INSTALLATION, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY SELECTING “I AGREE” DURING INSTALLATION, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, SELECT “I DO NOT AGREE” AND THE BETA SOFTWARE WILL NOT BE DOWNLOADED TO YOUR COMPUTING DEVICE.
You affirm: that you have adequate legal capacity to enter into and abide by the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement; and that in any case, you are over the age of 18.
1. TERM AND GRANT OF LICENSE.
For the duration of the Beta Test (as defined below), subject to your compliance with the terms and restrictions of this Agreement, the Company agrees to provide you with certain rights for access and use of the Beta Software. You also agree to be bound by the restrictions of use of the Beta Software as described below in Section 2, and acknowledge that the Beta Software is still in development as described below in Section 3. The Company reserves all rights not expressly granted herein.
The Company hereby grants to you a non-transferable, non-exclusive, revocable right to use the Beta Software. You may use the Beta Software on an unlimited number of handheld devices, but the Company reserves the right to unilaterally and without notice disable, modify, update, revise or otherwise change the functionality, appearance, interface or capabilities of the Beta Software.
Under this Agreement, you MAY NOT:
- rent, lease, license, loan, assign or otherwise transfer your rights to the Beta Software;
- reproduce, duplicate, copy, sell, resell, lease or exploit for any purpose, the Beta Software or any portion thereof, including without limitation any content other than your personal digital content displayed in connection with the Beta Software;
- use the Beta Software for any purpose other than expressly permitted by this Agreement;
- reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Beta Software or recreate the Beta Software, except to the extent the foregoing restriction is expressly prohibited by applicable law;
- make error corrections to, or otherwise adapt or modify, or create derivative works based upon the Beta Software;
- provide false information to set up an account, attempt to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining or any other means, or otherwise use the Beta Software to impersonate any person, business or entity, including our company and our employees and agents;
- utilize the Beta Software or any portion thereof as a means to track or monitor the location and activities of any individual without their express consent and authorization;
- propagate Beta Software that contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer Beta Software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
- engage in any activity that otherwise interferes with the use and enjoyment of the Beta Software by others, including without limitation: using the Beta Software in any way that may damage, disable, overburden, or impair our servers or networks; harvesting personal or other information about other Beta Software users for any reason; transmitting, directly or indirectly, any unsolicited bulk communications (including e-mails and instant messages);
- remove the copyright notice from the Beta Software or documentation accompanying the Beta Software;
- use the Beta Software for any illegal purpose, or in violation of any local, state, national, or international law; or
- authorize, encourage or cooperate with any third party to do any of the foregoing.
3. ACKNOWLEDGMENT OF BETA STATUS.
You understand and acknowledge that the Beta Software is in the process of development and is not a complete or finished product. Certain functionality intended to be implemented in the final version of the Beta Software may not be operational or complete. In addition, though the Company believes that the Beta Software is safe and will function as intended, the Beta Software has not been subjected to the same level of rigorous testing to which the Beta Software will be subjected before it is released to the general public.
The Company may ask you to provide feedback on the Beta Software from time to time. Any feedback you choose to provide will become the property of the Company, and you will not be entitled to any form of compensation for such feedback.
The Company reserves the right to at any time terminate this license, or modify the Beta Software in any way without notice.
YOU UNDERSTAND THAT THE BETA SOFTWARE IS DELIVERED “AS IS”, AND MAY NOT HAVE BEEN FULLY TESTED OR DEBUGGED.
4. YOUR ACCOUNT.
The Beta Software is for your use only and allows you to create an account through your mobile or other device for purposes of accessing the Company’s nutrition tracking, management and analysis software. When creating your account, you must provide accurate information.
You are solely responsible for the activity that occurs on your account, and you must keep your account log-in and password secure. You must notify the Company immediately of any breach of security or unauthorized use of your account. The Company is not liable for your losses caused by any unauthorized use of your account; however, you may be liable for the losses of the Company or others due to such unauthorized use.
You acknowledge and agree that the Beta Software is a proprietary product of the Company whether or not patented or copyrighted. You further acknowledge and agree that all right, title, and interest in and to the Beta Software, including associated intellectual property rights, is and shall remain with the Company. This Agreement does not convey to you an interest in or to the Beta Software, but only a limited right of use that is revocable in accordance with the terms of this Agreement. No right, title, or interest in or to any trademark, service mark, logo or trade name of the Company is granted under this Agreement.
The Company may ask you to provide it with various types of information about you, including your age, gender, height, and weight, and to provide on an ongoing basis information about your exercise routine and food and beverage consumption habits (collectively the “Customer Information”). As you use the Beta Software, the Company may also directly collect information about your movements, exercises and health (“Personal Nutrition Information” and, together with the Customer Information, the “User Information”).
The Company will use your User Information to customize your nutrition plan, and to track, analyze and enhance your exercise and nutrition habits. Our analysis is based on well-established guidelines drawn from publications in respected, peer-reviewed journals. For your safety, however, it is critically important that the User Information be accurate and complete. Misstatements, intentional or accidental, will not only make the Beta Software’s reference information inaccurate and less useful than it could be, it could result in advice that is harmful or even dangerous to you. You are ultimately responsible not only for providing accurate User Information, but also for taking any information and/or recommendations made by the Beta Software and considering these in light of your own experience, training routines, self-knowledge and common sense. This will be true of all versions of the Company’s software, but is particularly true of the Beta Software, which remains in a development stage and could produce unexpected and erroneous results. The Beta Software is not intended to be used in lieu of personalized guidance and analysis, and should be considered as a reference tool only.
You may terminate this Agreement, for any reason or no reason, at any time by notifying the Company. Upon termination of this Agreement, you shall cease use of the Beta Software and destroy all copies, full or partial, of the Beta Software. Sections 8, 9, 10, 11 and 14 shall survive any termination of this Agreement.
The Company may terminate this Agreement at any time and without notice in the event that the Company determines, in its sole discretion:
- that you have or attempted to act in any manner set forth in Section 2 of this Agreement;
- that you are using the Beta Software or otherwise engaging in any action that may harm the Company; or
- that it is in the best interest of the Company to terminate the Agreement.
8. NO WARRANTY.
THE BETA SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE BETA SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION AND USE OF, AND RESULTS OBTAINED FROM, THE BETA SOFTWARE. THE COMPANY MAKES NO WARRANTY THAT THE BETA SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE BETA SOFTWARE AND ANY ACCOMPANYING WRITTEN MATERIALS.
FURTHERMORE, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT INFORMATION OR RECOMMENDATIONS ACQUIRED THROUGH THE BETA SOFTWARE WILL BE CORRECT, APPROPRIATE OR SAFE. IN ALL CASES, THE UTILITY OF THE INFORMATION PROVIDED BY THE BETA SOFTWARE WILL BE LIMITED BY THE ACCURACY, COMPLETENESS AND TIMELINESS OF THE INFORMATION YOU PROVIDE. THE BETA SOFTWARE IS INTENDED TO BE A REFERENCE SOURCE FOR COMMITTED ATHLETES, AND ALL INFORMATION AND RECOMMENDATIONS MUST BE ANALYZED BY THE USER, WHOSE KNOWLEDGE AND INFORMATION ABOUT THEIR OWN HEALTH AND FITNESS IS SUPERIOR TO THAT AVAILABLE TO THE COMPANY.
Some states/countries do not allow limitations on implied warranties, so the above limitation may not apply to you. You hereby acknowledge that the Beta Software may not be available or become unavailable due to any number of factors including, without limitation, periodic system maintenance, scheduled or unscheduled, acts of god, technical failure of the Beta Software, telecommunications infrastructure, or delay or disruption attributable to viruses, denial of service attacks, increased or fluctuating demand, actions and omissions of third parties, or any other cause reasonably beyond the control of the Company. Therefore, the Company expressly disclaims any express or implied warranty regarding system and/or software availability, accessibility, or performance.
9. NO LIABILITY FOR DAMAGES.
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, DIRECT, INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE BETA SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING FAULT, NEGLIGENCE AND THE FAILURE OF THE ESSENTIAL PURPOSE. REGARDLESS OF THE CAUSE OR FORM OF THE ACTION, THE Company’S AGGREGATE LIABILITY TO YOU FOR ACTUAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF THE LICENSE FEE, IF ANY, PAID BY YOU TO THE COMPANY FOR THE USE OF THE BETA SOFTWARE. Because some states/countries do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
You agree to defend, indemnify and hold harmless the Company and any of its affiliates (and the Company’s and it affiliates’ respective officers, directors, agents, subsidiaries and employees) from any liability, loss, damage, cost or expense (including reasonable attorney’s fees) arising out of any act or omission by you in connection with the Beta Software.
11. GOVERNING LAW AND JURISDICTION.
This Agreement and all rights and obligations hereunder, including but not limited to matters of construction, validity and performance, shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to its conflicts of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement shall not be subject to the Uniform Commercial Code.
Each of the parties hereto:
- irrevocably submits to the exclusive jurisdiction of any Ohio state or federal court in any action or proceeding arising out of or relating to this Agreement;
- irrevocably agrees that all claims in respect of such action or proceeding shall be heard and determined in such Ohio state or federal court; and
- irrevocably waives, to the fullest extent it may legally do so, any rights to a trial by jury in such action or proceeding and the defense of an inconvenient forum to the maintenance of such action or proceeding.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
12. EXPORT RESTRICTIONS.
You acknowledge that the Beta Software and any portion thereof must be exported in accordance with U.S. Export Administration Regulations (EAR) and diversion contrary to U.S. law is prohibited.
This Agreement may not be assigned by you without the prior written consent of the Company. The Company may assign this Agreement without your consent.
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
15. ENTIRE AGREEMENT; NO WAIVER.
This Agreement represents the entire agreement concerning the Beta Software between you and the Company, and it supersedes any prior proposal, representation, or understanding between the parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.