FitnessGram¨ Hosting
Services Terms of Use
Updated October 24, 2016
As a
Customer (ÒCustomerÓ
or ÒyouÓ
or ÒyourÓ)
hereby agree
that these
Terms
of Use
(ÒTermsÓ
or
ÒAgreementÓ)
govern your use of
The Cooper
Institute¨ (ÒThe
Cooper Institute¨Ó
or
ÒweÓ or ÒourÓ) Hosting Services (collectively, ÒServicesÓ) and the
FitnessGram¨ Software, a fitness education assessment program software that we include as
part of the Services, including any applications, Content (defined below), scripts, instruction sets, and any
related documentation (collectively ÒFitnessGram¨ SoftwareÓ). By
using the Services or FitnessGram¨ Software, you agree to these
terms. As discussed more in Section 3
below, you retain all rights and ownership
you
have in your Content that you make available through the Services.
1. How this Agreement Works.
1.1 Eligibility. You may only use the Services if you agree to the Privacy
Policy regarding authority to access the
Services under the appropriate law.
1.2 Privacy. The
Privacy Policy at https://myhealthyzone.fitnessgram.net/ governs any personal information you provide to us. By using the Services or FitnessGram¨ Software you agree to the terms
of the Privacy Policy.
1.3
FitnessGram¨ Software. The FitnessGram¨ Software means, collectively, all of
the present and future FitnessGram¨ Software packages or
programs, including without
limitation, FitnessGram¨, MyHealthyZoneTM,
ActivityGram¨, Healthy
Fitness Zone¨, and Activity Log,
and
their related components. The FitnessGram¨ Software is licensed, not sold, only
in accordance with these Terms.
1.4 FitnessGram¨ Marks. For the purposes of
this Agreement, "The
Cooper Institute¨ Marks" means the following trademarks, service marks, service or trade names, logos, product names, or
designations of The Cooper Institute¨ and its affiliates: ÒMyHealthyZoneTM,Ó ÒFitnessGram¨,Ó ÒActivityGram¨,Ó
ÒHealthy Fitness Zone¨,Ó, together with all goodwill associated therewith, and
any other The Cooper Institute¨
Marks made available from
time to time.
1.5 Sales Order. The
Terms of this Agreement shall apply after paying the related fees found at http://www.cooperinstitute.org/fitnessgram/buy-now and providing all required technical data to
allow Hosting, and thereby creating an account for The Cooper Institute¨ Hosting Services
(ÒAccountÓ).
1.6 Publicity. Customer agrees that the names and other
information of
and
concerning The Cooper Institute¨,
the Cooper
Aerobics EnterprisesTM
and Dr.
Kenneth
H. Cooper,
M.D., M.P.H. cannot be
used by Customer without prior written
approval from The Cooper Institute¨.
1.7 Frequently
Asked Questions (FAQ). Customer may find
answers to FAQs about
FitnessGram¨ at http://www.cooperinstitute.org/FGFAQ.pdf
1.8 Order of Precedence. If there is any conflict between the terms in this Agreement and the
Sales
Order,
then
terms of this Agreement govern.
1.8 Modification. We may modify
or discontinue the Services, FitnessGram¨ Software, or any portions or features thereof at any time without liability
to you or anyone else. However, we will make reasonable effort to notify you before we make the change. If we discontinue a Service in its
entirety, we will also allow you a reasonable time
to
download your Content, and we will
provide you with a pro rata refund for any unused fees for that Service that you may have prepaid.
2. Use of Services.
2.1 License. Subject to your compliance with this Agreement and the law, you may access and use
the Services and the
FitnessGram¨ Software.
2.2 The Cooper Institute¨ Intellectual Property. We remain the sole owner of all right, title,
and
interest in the intellectual property
in the FitnessGram¨ Software. We reserve all rights not granted under these Terms.
2.3 Storage. We may create reasonable technical limits on your Content, such as limits on file size, storage space, processing
capacity, and other technical limits. We may
suspend the Services
until you are within
the storage space limit associated with your Account.
3. Your Content.
3.1
Your Content. Content means the information and data
provided by you concerning your students,
schools, and operations.
3.2 Ownership. You retain all rights and ownership of your Content. The Cooper Institute¨
does not claim any
ownership rights
to your Content.
3.3 Importing your Content. In order for you to import your
Content to The
Cooper Institute¨ Hosting Services you agree to specifically
comply with all steps to import or reimport file data available through
https://myhealthyzone.fitnessgram.net/.
3.4. Licenses to Your Content in Order to Operate the Services. We require
certain licenses from
you to your Content to operate and enable the Services. When you upload Content
to the Services, you grant The
Cooper Institute¨ a non-exclusive, worldwide, royalty-free, sub-
licensable, and transferrable license
to use, reproduce, and translate
the Content as needed in response to your use of the Services and FitnessGram¨ Software (such as when you choose to
share your Content with others). This license is only for the purpose of operating and
improving
the Services.
3.5 Our Access. We will not access, or view to any of your Content, except as reasonably
necessary to perform the Services. Actions reasonably
necessary to perform the Services may include (but are not limited to) (a) responding
to support requests; (b) detecting, preventing, or
otherwise addressing fraud,
security,
unlawful, or technical issues; and (c) enforcing these
Terms.
3.6 Sharing
Your
Content.
(a) Sharing. Some Services may provide features that allow you to Share your Content with other users or to make it public. ÒShareÓ
means to email, post, transmit, upload, or otherwise make available (whether to The Cooper Institute¨ or other users) through your use of
the
Services. Other users may use, copy, modify, or re-share your Content in many
ways. Please consider carefully what you choose to Share or make public, as you are entirely responsible for the Content
that you Share.
(b) Level of Access.
We do not monitor or control what others do with your Content. You are
responsible for determining
the limitations that are placed on your Content and for applying
the appropriate level of access to your Content. If you do not choose the access level to apply
to your
Content, the system may default to its most permissive setting. It is your responsibility to let other users know how your Content may
be shared and adjust the setting related to accessing or sharing
of your Content.
3.7 Termination of License. You may revoke this license to your Content and terminate our rights at any time by removing your Content from the Service. However, some copies of your
Content
may
be retained as part
of our routine backups.
3.8 Feedback. You have no obligation to
provide The Cooper Institute¨ with ideas, suggestions, or proposals (ÒFeedbackÓ). However, if you submit Feedback to us, then you grant The Cooper Institute¨ a
non-exclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to use, reproduce, publicly
display, distribute, modify, and publicly
perform the
Feedback.
3.9 Account Information. You are responsible for all activity
that occurs via your Account.
Please notify FitnessGram¨ Customer Support (support@FitnessGram.net) immediately if you become aware of any unauthorized use of your Account. You may not (a) Share your Account information (except with an authorized Account administrator) or (b) use another personÕs
Account. Your Account administrator may use your Account information to manage your use and
access to the Services.
4. Use of FitnessGram¨ Software.
4.1 Subscription-Based FitnessGram¨ Software License. We are providing the
FitnessGram¨ Software to you as part of your subscription to use the Services, which are subject
to your compliance with these Terms, we grant you a non-exclusive license to install and use
the FitnessGram¨ Software: (a) in the Territory, (b) so
long as your subscription is valid, and (c) consistent with these Terms and
related
documentation accompanying the FitnessGram¨
Software.
ÒTerritoryÓ
means your school district established when your Account
was created. The FitnessGram¨ Software requires you
to take certain
steps to activate your FitnessGram¨
Software or validate your subscription. Failure to activate
or register
the FitnessGram¨ Software, validate the subscription, or a determination by
The Cooper Institute¨ of fraudulent or
unauthorized use of the FitnessGram¨ Software may
result in reduced functionality, inoperability
of the FitnessGram¨
Software, or a termination or
suspension of the subscription.
4.2 General License. If the
FitnessGram¨ Software
is provided as part of
the Services without restrictions on subscription or number
of devices, then subject to your compliance with
these Terms, we grant you a non-exclusive license to install and use the FitnessGram¨ Software
(a)
in the Territory, (b) for the purpose of using
and
accessing of the Services, and (c) consistent with these Terms
and
related documentation
accompanying the FitnessGram¨ Software.
4.3 Restrictions
and
Requirements.
(a) Proprietary Notices. You must ensure that
any permitted
copy of the FitnessGram¨ Software that you make contains the same copyright, trademark, and other proprietary notices that appear on or
in the FitnessGram¨ Software.
(b)
Restrictions.
Unless permitted in these Terms, you
must not: (1) Modify, port, adapt, or
translate the FitnessGram¨
Software;
(2)
Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the FitnessGram¨
Software;
(3) Use or offer the FitnessGram¨
Software on a service bureau basis;
(4) Circumvent technological measures intended to control access to the FitnessGram¨ Software
(5) Develop, distribute, or use with the FitnessGram¨ Software, products that circumvent the technological measures; or
(6) Rent, lease, sell, sublicense, assign,
or transfer your
rights in
the FitnessGram¨ Software, or
authorize any portion of the FitnessGram¨ Software to be copied onto anotherÕs device. If you purchase Services for education (named user), then you may designate seats pursuant to the applicable documentation.
(c) Responsible Use. The Cooper Institute¨ communities often consist
of users who expect a certain degree of courtesy and professionalism. You must use the Services responsibly. You must not misuse the Services or FitnessGram¨
Software. For example, you must
not:
(1) Copy,
modify,
host, sublicense, or resell
the Services;
(2) Enable or allow others to use the Services or FitnessGram¨ Software using your Account information;
(3)
Access or attempt to access the Services by
any
means other than the interface we provided or authorized;
(4) Circumvent any access or use
restrictions
put into place to prevent certain
uses of the
Services;
(5) Engage in behavior that violates anyoneÕs Intellectual Property Right (ÒIntellectual Property
RightsÓ means copyright, moral rights, trademark, trade dress, patent, trade
secret, unfair competition, right of privacy, right
of publicity, and any other proprietary rights.);
(6) Share any information that is unlawful, harmful, threatening, abusive, tortious, defamatory,
libelous, vulgar, lewd, profane,
invasive of anotherÕs privacy, or hateful;
(7)
Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation
with a person or entity;
(8) Attempt
to disable, impair, or destroy the Services, software, or hardware;
(9) Disrupt, interfere with, or inhibit
any other user from using the Services (such as stalking,
intimidating, or harassing others, inciting
others to commit violence, or harming minors in any way),
(10) Engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited
messages;
(11)
Market or advertise any products or services through the Services unless we specifically allowed you to do so;
(12) Use any data mining or similar data gathering
and
extraction methods in connection with the
Services;
or
(13) Violate applicable law.
6. Fees.
You must pay any applicable taxes unless you can prove your tax exempt status, and any
applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP
charges, data
plan charges, credit card fees, foreign exchange
fees). We
are not responsible for
these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection
costs and expenses.
7. Your Warranty and Indemnification Obligations.
7.1 Warranty. By
uploading your Content to the Services, you agree that you have all necessary
licenses and permissions,
to use and Share your Content.
7.2
Indemnification. You will indemnify
The Cooper Institute¨ and our subsidiaries, affiliates,
officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneysÕ fees, arising out of
or related to your Content, your
use of the Services or FitnessGram¨
Software, or your violation
of these Terms
of this Agreement.
8. Disclaimers of Warranties.
8.1 UNLESS STATED IN THE THIS AGREEMENT, THE SERVICES AND FITNESSGRAM¨ SOFTWARE ARE PROVIDED ÒAS-IS.Ó
TO
THE MAXIMUM
EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO COMMITMENTS ABOUT THE CONTENT WITHIN THE
SERVICES. WE FURTHER DISCLAIM ANY WARRANTY THAT (A) THE SERVICES OR SOFTWARE
WILL MEET YOUR REQUIREMENTS OR
WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) THE RESULTS THAT
MAY
BE OBTAINED
FROM THE USE OF
THE SERVICES OR
SOFTWARE WILL BE EFFECTIVE, ACCURATE, OR
RELIABLE; (C) THE QUALITY
OF
THE SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; OR THAT (D) ANY ERRORS OR DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.
8.2 WE SPECIFICALLY DISCLAIM ANY LIABILITY FOR ANY ACTIONS
RESULTING FROM
YOUR
USE OF ANY SERVICES OR SOFTWARE. YOU MAY USE AND ACCESS THE SERVICES OR SOFTWARE AT YOUR OWN DISCRETION AND
RISK,
AND YOU ARE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR
COMPUTER SYSTEM OR LOSS OF
DATA
THAT RESULTS FROM THE USE AND
ACCESS OF ANY SERVICE OR SOFTWARE.
9. Limitation of Liability.
9.1 UNLESS STATED IN THIS AGREEMENT, WE ARE NOT LIABLE TO YOU OR ANYONE
ELSE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF WE HAVE
BEEN ADVISED OF
THE
POSSIBILITY OF
THESE DAMAGES), INCLUDING THOSE (A) RESULTING FROM LOSS OF
USE, DATA, OR PROFITS, WHETHER OR NOT
FORESEEABLE, (B)
BASED ON ANY THEORY
OF LIABILITY,
INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR (C) ARISING FROM ANY OTHER CLAIM ARISING
OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES OR
SOFTWARE. NOTHING
IN THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY FOR GROSS NEGLIGENCE, FOR
OUR (OR
OUR EMPLOYEESÕ)
INTENTIONAL MISCONDUCT,
OR FOR DEATH OR PERSONAL INJURY.
9.2 OUR TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THESE TERMS IS LIMITED TO US $100 OR THE AGGREGATE AMOUNT THAT
YOU PAID
FOR ACCESS TO
THE SERVICE
AND SOFTWARE DURING THE
MONTH
PRECEDING THE
EVENT
GIVING RISE
TO THE
LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF
WE HAVE BEEN ADVISED OF THE POSSIBILITY
OF THE LIABILITY EXCEEDING THE
AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
9.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 APPLY TO THE MAXIMUM EXTENT PERMITTED BY
LAW.
10. Termination.
10.1 Termination by You. You may stop using the Services at any time. Termination of your
Account does
not relieve you
of any obligation to pay any outstanding
fees.
10.2 Termination by Us. We may terminate these Terms if we elect to discontinue
the Services
or FitnessGram¨ Software, in whole
or in
part and we will notify you at least 30 days prior to termination via the email address you provide to The Cooper Institute¨ with instructions on how to retrieve your Content. If we terminate these Terms for cause, then we will notify you at least
30
days prior
to termination via
the email address you provide to
The Cooper Institute¨ with
instructions on how to retrieve your Content.
Unless stated in this Agreement,
we may at any time terminate these Terms
with
you if:
(a)
You breach any provision of these Terms (or act in a manner that clearly shows you do not
intend to, or are unable to,
comply with these Terms);
(b)
You fail to make the timely payment of fees for the FitnessGram¨ Software or the Services,
if any;
(c) We are required to
do so by law (for example, where the provision of the Services
or
FitnessGram¨
Software to you is, or becomes,
unlawful);
or,
10.3 Survival. Upon expiration or termination of these Terms, any perpetual licenses granted, your indemnification obligations,
our
warranty disclaimers or
limitations of liabilities
and dispute resolution provisions stated in these Terms will survive. Upon the expiration or
termination of the Services, some or all of the FitnessGram¨ Software may cease to operate without prior notice.
11. Investigations.
11.1 Screening.
We do not review Content uploaded
to the Services, but we may use available technologies or processes to screen
for certain
types of illegal information (for example, child
pornography) or other abusive information
or behavior
(for example,
patterns of activity that
indicate spam or phishing,
or keywords).
11.2 Disclosure. We may access or disclose information about you, or your use of the Services,
(a)
when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to
protect the rights,
property, or personal
safety of us, our
users, or the public.
12. Export Control Laws. The FitnessGram¨ Software, Services, Content, and your use of the FitnessGram¨ Software, Services, and Content, are
subject to U.S. and international laws, restrictions, and regulations that may
govern the import, export, and use of the FitnessGram¨ Software, Services, and Content. You agree to comply
with all the laws, restrictions, and
regulations.
13. Dispute Resolution.
13.1 Venue. Any claim or dispute you may
have against The Cooper Institute¨ must be resolved
by a
court located in Dallas County, Texas, U.S.A. under the law of Texas, U.S.A. You agree to
submit to the personal jurisdiction of the applicable
court in Dallas County, Texas for the purpose of
litigating the claim or dispute. The parties specifically
disclaim the applicability of the U.N.
Convention
on Contracts for the International Sale of Goods.
13.2 Injunctive
Relief.
Notwithstanding the foregoing, in
the
event
of your or
othersÕ unauthorized access to or
use of the Services in violation of these
Terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any
jurisdiction.
14. Miscellaneous.
14.1 Notice to The Cooper Institute¨. You may
send the notices to The Cooper Institute¨ to at
the following
address: The Cooper Institute¨, 12330 Preston Road, Dallas, TX 75230, Attention: Chief Executive Officer.
14.2 Notice to You. We may notify you by email, postal mail, postings within the Services, or
other legally acceptable means.
14.3 Entire Agreement. This Agreement constitutes the entire agreement between you and The Cooper
Institute¨ regarding your use of
the Services
and
FitnessGram¨
Software
and supersedes any
prior agreements between
you
and
The Cooper
Institute¨
relating
to the
Services.
14.4 Non-Assignment. You may not assign
or
otherwise transfer these Terms
or your rights
and obligations under these Terms, in whole or in part, without
our written consent.
We
may transfer our
rights under these Terms
to a third party.
14.5 Severability. If a particular term
is not enforceable,
the unenforceability
of that term will not affect any other Terms.
14.6 No Waiver. Our failure to enforce or exercise any of these Terms is not
a waiver of that section.