END USER AGREEMENT
License, Disclaimer, Waiver, Release
July 1, 2007
Health Walkers may modify this Agreement at any time, and such modification shall be effective fifteen days from either posting of the modified Agreement or notifying you directly. You agree to review this Agreement periodically to ensure that you are aware of any modifications. Your continued use of HealthWalkers.com after the modification effective date shall be deemed your conclusive acceptance of the modification and the Agreement.
1. Service Terms and Limitations
HealthWalkers.com is proprietary to Health Walkers and is protected by intellectual property laws and international intellectual property treaties. Your access to HealthWalkers.com is licensed and not sold. Subject to payment of all fees (as may be defined) and the terms and limitations set forth in this Agreement, Health Walkers agrees to provide you with (i) a personal, non-transferable and non-exclusive account enabling you to access and use HealthWalkers.com and (ii) a limited, non-transferable and non-exclusive license to use the software and documentation necessary to access, explore and otherwise use HealthWalkers.com in real time and to use the materials in HealthWalkers.com in a manner consistent with paragraphs 4 (Online Communications) and 9 (Copyright) below.
1.2 User's Agreement
You agree to: (a) maintain the security of your user identification, password and other confidential information relating to your HealthWalkers.com account; (b) be solely responsible for the security, confidentiality and integrity of all messages and the content that you receive, transmit through or store on HealthWalkers.com; (c) be responsible for all charges resulting from use of your HealthWalkers.com account, including unauthorized use prior to your notifying HealthWalkers.com in writing of such use and taking steps to prevent its further occurrence by changing your password ; and (d) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of HealthWalkers.com.
1.3 User Representations
You represent and warrant to HealthWalkers.com that: (a) you are over the age of eighteen (18) or have the consent of a legal guardian or parent to utilize HealthWalkers.com or it’s services; (b) all information provided by you to Health Walkers is truthful, accurate and complete; (c) you shall comply with all terms and conditions of this Agreement; and (d) you have provided and will provide accurate and complete registration information, including, without limitation, your legal name and address.
You acknowledge and agree that from time to time HealthWalkers.com may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Health Walkers may undertake from time to time; or (iii) causes beyond the control of Health Walkers or which are not reasonably foreseeable by Health Walkers.
You shall be solely responsible for providing, maintaining and ensuring compatibility with HealthWalkers.com, all hardware, software, electrical and other physical requirements for your use of HealthWalkers.com, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use HealthWalkers.com.
1.6 Medical Liability Release
Health Walkers recommends that you consult a physician before beginning any exercise program. You understand that participating in any exercise program can result in physical injury and agree to do so at your own risk. You understand that you should consult with a physician or other qualified health care provider before embarking on any fitness or dietary program.
If Health Walkers charges a subscription fee for the use of the HealthWalkers.com, the fees for the use of the HealthWalkers.com does not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the service.
3.1 Medical Content Disclaimer
The information presented or contained in HealthWalkers.com (collectively, the "Content") is presented only for the purpose of providing general information related to health and fitness topics. Nothing contained in HealthWalkers.com or the Content is intended to be instructional for medical diagnosis or treatment. HealthWalkers.com is not a substitution for the services of a physician, a health provider, or any trained health professional, nor should it be relied on to suggest a course of treatment for a particular individual. Never disregard medical advice from a trained health professional or delay in seeking it because of something you have read on HealthWalkers.com.
3.2 Special Events Disclaimer
Periodically walking or fitness challenges (“Special Events”) will be conducted in HealthWalkers.com. These Special Events are for entertainment purposes only.
Special Events are not intended to influence your walking habits and are based solely on the statistical analysis of the numbers that members have entered into the HealthWalkers.com database.
3.3 Warranty Disclaimer
Content on or available through HealthWalkers.com are provided "AS IS" without warranty, express or implied. Health Walkers hereby excludes all implied warranties of merchantability and fitness for a particular use or purpose with respect to HealthWalkers.com. There are no warranties which extend beyond the description on the face of this Agreement. Health Walkers and Information Providers make no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of HealthWalkers.com.
Health Walkers cannot and do not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. Health Walkers and Information Providers cannot and do not guarantee or warrant that files available for downloading from this online site will be free of infection by viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. Health Walkers and Information Providers do not warrant or guarantee that the functions or service accessed through HealthWalkers.com will be uninterrupted or error-free or that defects in HealthWalkers.com will be corrected. Users of HealthWalkers.com are responsible for (1) implementing and maintaining adequate procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output and (2) maintaining a means external to HealthWalkers.com for the reconstruction of any lost data.
3.5 Third Party Information Disclaimer
Statements made in websites, newsgroups, message boards, email, forums, conferences and chats reflect only the views of their authors. Forum managers, forum hosts, content providers, Information Providers or merchants appearing on HealthWalkers.com are not authorized spokespersons for Health Walkers, and their views do not necessarily reflect those of Health Walkers.
4. Online Communications
4.1 Your participation in online communications occurs in real time and is not edited, censored, or otherwise controlled by Health Walkers. Health Walkers cannot and does not screen content provided to you or by you through the HealthWalkers.com service. Notwithstanding the foregoing, Health Walkers reserves the right to monitor content on HealthWalkers.com and to remove content, which Health Walkers, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of this Agreement or operating policies for users of HealthWalkers.com.
4.2 Operating policies relating to online conduct, storage and deletion of email and uploaded files, conferences, bulletin boards (“BBS“) and other matters are available online within the forum areas of HealthWalkers.com. Health Walkers reserves the right in its sole discretion to change such operating policies at any time. Files uploaded to a bulletin boards may be subject to posted limitations on usage, reproduction and/or dissemination, and you are responsible for adhering to such limitations if you download them.
4.3 You are responsible for your communications and your use of HealthWalkers.com. You may not, under any circumstances, do any of the following: (a) use simultaneous, unattended or continuous connections to HealthWalkers.com with one account; (b) post or transmit any message which is libelous or defamatory; (c) post or transmit any message, data, image or program which is indecent, obscene or pornographic; (d) post or transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion; (e) use HealthWalkers.com to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (f) intercept or attempt to intercept email or other private communications not intended for you; (g) send email to HealthWalkers.com users (“Users”) or other Internet users for any purpose other than personal communication, including to advertise or to sell or offer unsolicited goods or services to other Users, use as a mass unsolicited distribution medium to communicate a generally unsolicited message, or use your email account as an address to which Users or other Internet users need to respond (except as otherwise expressly permitted by HealthWalkers.com ; (h) send unsolicited email messages through third-party mail servers in order to relay your email or hide the origination of your email to others; (i) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; (j) upload files that contain a virus or corrupted data; (k) delete any author attributions, legal notices or proprietary designations or labels in a file that you upload to a BBS or HealthWalkers.com ; (l) falsify the source or origin of software or other material contained in a file that you upload to a BBS or HealthWalkers.com ; (m) use HealthWalkers.com in a manner that adversely affects the availability of its resources to other Users; (n) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a subscriber to HealthWalkers.com the User directory or any portion thereof other than for personal, noncommercial purposes; (o) falsely purport to be an employee or agent of Health Walkers (p) cause repeated disruptive incidents; (q) act, or fail to act, in your use of HealthWalkers.com, in a manner that is contrary to applicable law or regulation; or (r) engage in any other activity deemed by the Health Walkers to be in conflict with the spirit or intent of this Agreement. In addition, you may not post or transmit any message which is harmful, threatening, abusive or hateful. It is not the intent of Health Walkers to discourage Users from taking controversial positions or expressing vigorously what may be unpopular views in HealthWalkers.com, nonetheless, Health Walkers reserves the right to take such action as it deems appropriate in cases where HealthWalkers.com is used to disseminate statements which are deeply and widely offensive and/or harmful. Each time you upload a file on HealthWalkers.com, you represent and warrant that you own or otherwise control the rights or have the necessary consents to do so, and you grant every other User the right to download and use such file. Your failure to observe any of the foregoing limitations or obligations may result in civil or criminal liability.
Health Walkers reserves complete and sole discretion with respect to the operation of HealthWalkers.com. Health Walkers may, among other things: (a) delete email or private messages if it has not been accessed by a User within the time established by Health Walkers policies; and (b) withdraw, suspend or discontinue any functionality or feature of HealthWalkers.com including free membership or access privileges.
6. Website Links
You are encouraged to use discretion while browsing the Internet using links initiated at HealthWalkers.com. HealthWalkers.com links may lead unintentionally to sites containing information that some people may find inappropriate or offensive. It may also lead to sites which contain inaccurate information, false or misleading advertising, or information which violates copyright, libel or defamation laws. Health Walkers and Information Providers make no representations concerning any effort to review all of the content of sites listed within HealthWalkers.com.
The entire contents of HealthWalkers.com are copyrighted as a collective work under the laws of United States and other copyright laws. Health Walkers holds the copyright in the collective work. The collective work includes works that are the property of the Information Providers which are also protected by copyright and other intellectual property laws. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the material from the different areas of HealthWalkers.com solely for your own non-commercial use, unless otherwise permitted (e.g., in the case of electronic coupons, etc). Any redistribution retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from HealthWalkers.com. You may not use any HealthWalkers.com logo or any other proprietary graphic or trademark without express written permission from Health Walkers.
9. Licenses and Idea Submissions
You agree to grant to HealthWalkers.com a non-exclusive, worldwide, royalty-free, perpetual license, with the right to sublicense, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products or services) you submit to public areas of HealthWalkers.com (such as BBS’s, forums and chat rooms) by all means and in any media now known or hereafter developed. You hereby waive your moral rights in any such materials and information, and you hereby warrant that any such materials and information are original with you, or that you have the right to submit such materials and information. You agree that you shall have no recourse against Health Walkers for any alleged or actual infringement or misappropriation of any proprietary right in your communication to us.
You agree to indemnify, defend and hold harmless Health Walkers, its officers, directors, employees, agents, information providers and suppliers from and against all losses, expenses, damages and costs, including reasonable attorney's fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing HealthWalkers.com.
11. Waiver, Release and Limitation of Liability
You agree that neither Health Walkers, nor its officers, directors, employees, agents, information providers or suppliers shall have any liability to you under any theory of liability or indemnity in connection with your use of HealthWalkers.com. You hereby release and forever waive any and all claims you may have against Health Walkers, its officers, directors, employees, agents, information providers or suppliers (including but not limited to claims based upon the negligence of Health Walkers, its officers, directors, employees, agents, information providers or suppliers) for losses or damages you sustain in connection with your use of HealthWalkers.com.
Notwithstanding the foregoing paragraph, the total liability of HealthWalkers.com, its officers, directors, employees, agents, information providers and suppliers, if any, for losses or damages shall not exceed the fees paid by the user for the particular information or service provided. In no event shall Health Walkers, its officers, directors, employees, agents, information providers or suppliers be liable to you for any losses or damages other than the amount referred to above. All other damages, direct or indirect, special, incidental, consequential or punitive arising from any use of the information or other parts of HealthWalkers.com are hereby excluded even if HealthWalkers.com its officers, directors, employees, agents, information providers or suppliers have been advised of the possibility of such damages.
Health Walkers reserves the right to terminate or suspend your HealthWalkers.com membership without notice due to your non-compliance or violation of this Agreement. The provisions of paragraphs 1.2 (User's Agreement), 1.3 (User Representations), 8 (Copyright), 9 (License, and Idea Submission), 10 (Indemnification), 11 (Waiver, Release and Limitation of Liability) and 14 (Miscellaneous) shall survive any termination of this Agreement.
Refunds are available on any prepaid account if your account has not been terminated or suspended by Health Walkers due to your non-compliance or violation of this Agreement as described in paragraph 12. The refunded amount will be calculated from the first day of the next month after a refund has been requested. Setup fees and any other posted cancellation fees are not refundable.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. You agree that any legal action or proceeding between Health Walkers and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in Duval County, Florida, United States. Any cause of action or claim you may have with respect to HealthWalkers.com must be commenced within one (1) year after the claim or cause of action arises. Health Walkers failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the Agreement between the parties with respect to HealthWalkers.com and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning HealthWalkers.com. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any user, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 10 and 11 is intended to benefit Health Walkers and its officers, directors, employees, agents, licensors, suppliers, and Information Providers. Health Walkers may assign its rights and duties under this Agreement to any party at any time without notice to you.