Fitspark TERMS OF USE AGREEMENT

Before starting or changing an exercise routine, talk with your health care provider about how much and what kind of physical activity is safe for you.

Welcome to Fitspark!

Fitspark consists of the FitSpark mobile application, website located at www.fitspark.com, including subdomains, and related Content and Services (as defined below) (collectively, the “Licensed Application”). The Licensed Application may be used on any device that permits such download, including but not limited to an, iPod®, iTouch®, iPad®, iPhone®, Android® Smart Phones, and Android® Tablets (all such devices, the “Device”).

The Licensed Application is licensed to you by Fitspark Health Inc., its affiliates and any successors and assigns (“Fitspark”, “us”, “our” or “we”).

Your use of the Licensed Application is governed by these Terms of Use and a privacy policy addressing personal and anonymous information we collect about you (the “Privacy Policy”) and which is incorporated herein by reference. You must agree to Terms of Use and Privacy Policy in order to use the Licensed Application.

By clicking the “Agree” button or by using the Licensed Application or any portion thereof, you acknowledge that you have read, understood and agree to be bound by the Terms of Use. If you do not accept these Terms of Use and the Privacy Policy, you are not authorized to use the Licensed Application.

  1. Updates

Fitspark reserves the right, at its sole discretion, to change or modify or to add or remove portions of the Terms of Use or Privacy Policy at any time (“Updates”). We will notify you of Updates by making them available at www.fitspark.com. You are deemed to have accepted any Update by continuing to use the Licensed Application.

  1. Use of the Licensed Application

The Licensed Application allows for the delivery of software, text, graphics, images, video, audio, data and other material (collectively, the “Content”), as well as other functionality and online services provided through the Licensed Application (“Services”).

You agree that the Licensed Application may contain Content that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such Content in any way whatsoever except for permitted use of the Licensed Application. Unauthorized use of the Content may violate copyright, trademark and other laws. The Content may be owned by us or may be provided through an arrangement we have with others, including other users of the Licensed Application, or our partners, sponsors or third parties. You have no rights in or to the Content, and you may not use the Content except as permitted under these Terms of Use. You may download Content only for your personal use for non-commercial purposes but no modification or further reproduction of the Content is permitted. No other use is permitted without prior written consent from us or the owner of the Content. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute or otherwise use the Content in any way for any public or commercial purpose, except to utilize features of the Licensed Application that, by their nature, involve publishing or sharing of Content with the public.

Various company, product, and service names displayed on the Licensed Application (including the Content and Services) may be trademarks, service marks, trade names, trade dress or products owned by others (the “Third-Party Trademarks“) and protected in Canada and internationally. No use of any of the Third Party Trademarks may be made without the prior written authorization of Fitspark, except to identify the products or services of Fitspark.

The Licensed Application may include access to links to, and content and data from, third-party websites (“External Services“). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Services. The content of such External Services is developed and provided by others. Fitspark has no responsibility for the content of such External Services and shall not be liable for any damages or injury arising from that content. Any links to other sites are provided as merely a convenience to the users of this Licensed Application. In addition, the Licensed Application permits access to content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.

The following activities are expressly prohibited: (i) collecting Login Information and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications; (ii) any use of the Licensed Application, which in our sole judgment, degrades the reliability, speed, or operation of the Licensed Application or any underlying hardware or software thereof; (iii) use of web scraping, web harvesting, or web data extraction methods from the Licensed Application or Fitspark even if the Licensed Application account owner gives permission; and (iv) any use of the Licensed Application which is unlawful or in violation of these Terms of Use.

  1. Account

Access to the Licensed Application requires that you register an account with Fitspark (“Account”). You much be at least 18 years old to register an Account and/or use the Licensed Application.

YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO OWNERSHIP OR ANY OTHER PROPERTY INTEREST IN YOUR ACCOUNT AND FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO YOUR ACCOUNT ARE AND SHALL BE FOREVER OWNED BY AND INURE TO THE BENEFIT OF FITSPARK.

Fitspark may suspend or terminate your Account at any time for any reason including, but not limited to, your violation of the Terms of Use.

  1. Login Information

Registering an Account requires you to submit an email address and password (“Login Information”). You are solely responsible for keeping your Login Information confidential. You agree to be bound by any use of your Login Information, including purchases and whether or not you authorized use of your Login Information. If you become aware, or reasonable suspect, an unauthorized use of your Account, you must immediately change the password that is part of your Login Information. Any questions concerning the unauthorized use of your account may be emailed to Fitspark at contactus@fitspark.com.

  1. Virtual Items

FitSpark may offer virtual items for sale within the Licensed Application. You agree that you have no rights to any virtual item you purchase and, if your license or Account is terminated by Fitspark for any reason, you will lose any and all virtual items you purchased. You are not entitled to a refund once you purchase a virtual item. You agree that such virtual items cannot be resold online or in the real world.

  1. Scope of License

You understand and agree that the Licensed Application is licensed, not sold, to you for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by us. We reserve all rights not expressly granted to you. This license is limited to a non-transferable license to use the Licensed Application on a Device that you own or control. This license does not allow you to use the Licensed Application on a Device that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple Devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any Updates, or any part thereof. You acknowledge that we have no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.

  1. Termination

Your license to the Licensed Application is effective until terminated by you or us. Your rights under these Terms of Use will terminate automatically without notice from us if you fail to comply with any term or condition of these Terms of Use. Notwithstanding the foregoing, your use of the Licensed Application is subject, in our sole discretion, to termination at any time. Upon termination of these Terms of Use, you shall cease all use of the Licensed Application and destroy all copies, full or partial, of the Licensed Application. We may terminate this Agreement, disable your Account, and/or put your Account on inactive status, in each case at any time in our sole discretion or your violation of these Terms of Use, and with or without notice. We shall have no liability to you or any third party because of such termination or action.

  1. Consent to Use of Data

You agree that we may collect and use technical data and related information, including but not limited to technical information about your Device, system and application software, and peripherals. You permit and license us to use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you. Our collection and use of your personal information provided in connection with this Licensed Application will be subject to the Privacy Policy and section 12.

  1. Disclaimer Regarding Health and Medical Information

THE LICENSED APPLICATION IS NOT A SUBSTITUTE FOR, AND DOES NOT PROVIDE, MEDICAL ADVICE. THE LICENSED APPLICATION IS PROVIDED FOR PERSONAL EDUCATIONAL, INFORMATIONAL AND CONVENIENCE PURPOSES ONLY AND IS NOT TO BE USED FOR THE DIRECTION OF CARE OF INDIVIDUAL PATIENTS. THE LICENSED APPLICATION IS GENERAL IN NATURE AND IS NOT INTENDED IN ANY WAY TO BE A SUBSTITUTE FOR A MEDICAL EXAM OR PROFESSIONAL MEDICAL ADVICE, MEDICAL OPINION, DIAGNOSIS OR TREATMENT, SYMPTOM ASSESSMENT, HEALTH COUNSELING OR MEDICAL OPINION FOR USERS. ALWAYS SEEK THE ADVICE OF APPROPRIATELY QUALIFIED AND REGULATED HEALTH PROVIDERS WITH ANY QUESTIONS YOU MAY HAVE WITH REGARD TO A SPECIFIC MEDICAL CONDITION. NEVER DISREGARD OR DELAY SEEKING CONSULTATIVE ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR VIEWED IN THE LICENSED APPLICATION. WE AND OUR SUBSIDIARIES, AFFILIATES, LICENSORS, CONTENT OR SERVICE PROVIDERS, OR SPONSORS, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS OF EACH, (COLLECTIVELY, “RELATED PARTIES”) WILL NOT BE LIABLE FOR, AND YOU WAIVE ANY CLAIM FOR, ANY PERSONAL INJURY, DAMAGE, AND/OR LIABILITY ARISING OUT OF YOUR USE OF OR YOUR RELIANCE ON THE LICENSED APPLICATION. RELIANCE ON ANY INFORMATION PROVIDED IN THE LICENSED APPLICATION IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION.

  1. Technical Requirements

You are solely responsible and liable for: (a) the selection of the Licensed Application to achieve your intended results; (b) obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage all equipment (including Devices) and services necessary for the installation and use of the Licensed Application and all Content used in association with the Licensed Application; (c) providing a safe and suitable location and environment for the installation and use of the Licensed Application; (d) the use, installation, implementation and operation of the Licensed Application and the results obtained therefrom; (e) scanning for and preventing the receipt and transmission of viruses, trojan horses, worms or other destructive or disruptive components; and (f) maintaining complete and current backup and archival copies of all data contained on your Device prior to installing or while using the Licensed Application.

  1. Privacy

Any information, including but not limited to personal information, submitted to Fitspark in electronic communications through the Licensed Application is governed by the Privacy Policy. You agree that Fitspark may use or copy all information in any such electronic communications, including any ideas, inventions, concepts, techniques or know-how disclosed therein, for any purposes described in the Privacy Policy. The sender of any communications to this Licensed Application or otherwise to Fitspark shall be responsible for the content and information contained therein, including its truthfulness and accuracy.

  1. Export

Canadian and foreign export control laws regulate the export and re-export of technology originating in Canada and such foreign countries. You agree to abide by these laws and regulations as applicable and will not transfer, directly or indirectly, by electronic transmission or otherwise, the Licensed Application and/or any Content in connection therewith from any countries or foreign nations in violation of such laws or regulations.

  1. Modifications or Suspension

We reserve the right at any time and from time to time to interrupt, suspend, restrict (without cause and without notice to you), modify or discontinue, temporarily or permanently, the Licensed Application (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any interruption, restriction, modification, suspension or discontinuance of the Licensed Application.

  1. Indemnification

You agree to indemnify, defend and hold Fitspark and Related Parties harmless from any liability, loss, claim and expense, including reasonable attorneys’ fees and expenses, related to either your violation of these Terms of Use, your use of the Licensed Application and/or the unauthorized use of any personal information or data uploaded in connection with the Licensed Application.

  1. Disclaimer of Warranties

FITSPARK AND RELATED PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR ASSURANCES ABOUT THE LICENSED APPLICATION (INCLUDING THE CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, AUTHENTICITY, TIMELINESS, AVAILABILITY OR RELIABILITY OF ANY INFORMATION OR DATA CONTAINED OR DISPLAYED IN THE LICENSED APPLICATION.

NEITHER WE NOR OUR AFFILIATES, PARTNERS OR SPONSORS ASSUME ANY RESPONSIBILITY OR LIABILITY FOR THE TRUTH, ACCURACY, AUTHENTICITY, AVAILABILITY OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE LICENSED APPLICATION OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO ACCURACY, RELIABILITY, COMPLETENESS, AUTHENTICITY, TIMELINESS, AVAILABILITY OR RELIABILITY OF THE LICENSED APPLICATION IS WITH YOU.

THE LICENSED APPLICATION AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FITSPARK AND RELATED PARTIES DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THE FUNCTIONS CONTAINED THEREIN, OR CONTENT OR SERVICES PERFORMED OR PROVIDED THEREBY, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED, AVAILABLE OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR RELATED PARTIES SHALL CREATE A WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, FITSPARK AND RELATED PARTIES FURTHER DISCLAIM ANY WARRANTIES THAT THE LICENSED APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE LICENSED APPLICATION IS AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE AND/OR ANY DATA LOSS THAT MAY RESULT FROM YOUR USE OF THE LICENSED APPLICATION, INCLUDING WITHOUT LIMITATION, DAMAGE RESULTING FROM COMPUTER VIRUSES. SHOULD THE LICENSED APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FITSPARK OR RELATED PARTIES BE LIABLE FOR ANY PERSONAL INJURY, OR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING OUT OF, RESULTING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL FITSPARK’S OR RELATED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR ONE HUNDRED DOLLARS ($100) (WHICHEVER IS LESS), FOR USING THE LICENSED APPLICATION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Survival

All sections of these Terms of Use that, by their nature, should survive termination will survive termination, including, without limitation, sections 2 and 3, sections 5 through 11, and sections 13 through 18.

  1. Governing Law; Miscellaneous

These Terms of Use shall be construed, interpreted and performed exclusively according to the laws of the province of British Columbia, without giving effect to any principles of conflicts of law. You expressly agree that any action at law or in equity arising out of or directly or indirectly relating to these Terms of Use or use of the Licensed Application shall be filed only in the federal or provincial courts sitting in Vancouver, British Columbia. You hereby consent and submit to personal jurisdiction of such courts for the purposes of any action related to the Licensed Application, your access or use thereof, or these Terms of Use, and to extra-territorial service of process. Should any part or provision of these Terms of Use be held unlawful, void, invalid or unenforceable, that portion shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. These Terms of Use constitute the only terms between us and you. These Terms of Use supersede any and all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Licensed Application, the Content, and/or Services provided by or through the Licensed Application, and the subject matter of these Terms of Use. To the extent that anything in or associated with the Licensed Application is in conflict or inconsistent with these Terms of Use, the Terms of Use shall take precedence. Our failure to enforce any provision of these Terms of Use shall not be deemed a waiver of such provision nor of its right to enforce such provision.

Contact Us

If you have any questions or concerns with respect to this Terms of Use or the Licensed Application, you may contact a Fitspark representative at contactus@fitspark.com.