Terms and Conditions

1.         AGREEMENT

These Terms and Conditions (the “Agreement”) constitute a legally binding agreement by and between Sanford Health doing business as FIT (hereinafter, “FIT”) and you concerning your use of FIT’s website located at www.move2draw.com (the “Website”) and associated mobile applications (the “Mobile Applications”) and the services available through the Website and Mobile Applications (collectively, the “Services”). By using the Services, you represent and warrant that you have read and understand, and agree to be bound by this Agreement and FIT’s Privacy Policy, located at, www.move2draw.com/privacy-policy, which is incorporated herein by reference and made part of this Agreement. IF YOU DO NOT UNDERSTAND THIS AGREEMENT OR THE PRIVACY POLICY, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND/OR MOBILE APPLICATIONS AND REFRAIN FROM USING THE SERVICES.

2.         PRIVACY POLICY

By using the Services, you consent to the collection and use of certain information about you, as specified in the Privacy Policy.

3.         CHANGES TO AGREEMENT AND PRIVACY POLICY

FIT RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AND ITS PRIVACY POLICY AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY POSTING THEM ON THE WEBSITE. IT IS YOUR RESONSIBILITY TO REVIEW THIS AGREEMENT AND THE PRIVACY POLICY PERIODICALLY. IF AT ANY TIME YOU FIND EITHER UNACCEPTABLE YOU MUST IMMEDIATELY CEASE USING THE SERVICES. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Services following the date in which the modified or amended Agreement and/or Privacy Policy is posted on the Website. Use of information collected is subject to the Privacy Policy in effect at the time of collection.

4.         ELIGIBILITY

By using the Services you represent and warrant that you are at least 13 years old. This Agreement is void where prohibited.

5.         CONTENT IS NOT MEDICAL ADVICE

FIT provides the Services for informational purposes only. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION.

YOU HEREBY AGREE THAT, BEFORE USING THE SERVICES, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM EXERCISE OR CHANGES IN YOUR DIET.

6.         THIRD-PARTY CONTENT

You are solely responsible for your conduct and any data, text, files, information, user names, images, graphics, photos, profiles, sounds, applications, links and other content or materials that you submit, post or display on or via the Services. Certain content displayed on or linked to the Website and Mobile Applications—namely, third party websites, services and news headlines (collectively “Third Party Content”)—is developed by individuals or merchants over whom FIT exercises no direct control. FIT does not endorse any Third Party Content, or the information, materials, products, or services associated with Third Party Content. Furthermore, some Users may find some Third Party Content to be objectionable, inappropriate, or offensive. FIT therefore does not make any express or implied warranties with regard to the nature of the information, material, products, or services that are displayed or linked by any Third Party Content.

7.         RISK ASSUMPTION

YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY FIT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.

8.         USER INFORMATION; PASSWORD PROTECTION

In connection with your use of certain Services, you may complete a registration form. You represent and warrant that all user information you provide on the registration form or otherwise in connection with your use of the Services will be current, complete and accurate, and that you will update that information as necessary to maintain its completeness and accuracy by visiting your personal profile.

You may also be asked to provide a user name and password in connection with your use of the Services. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, user name, or password of any other user at any time. You agree to notify FIT immediately of any unauthorized use of your account, user name, or password. FIT shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by FIT, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.

9.         INFORMATION PROVIDED BY USERS

As part of registration with the Services, users can create public profiles, which may contain certain identifying information. In addition, users have the option to post photographs and other information on their public profiles. FIT DOES NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF PUBLIC PROFILE INFORMATION, AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION PROVIDED BY USERS BY MEANS OF PUBLIC PROFILES OR OTHERWISE IN CONNECTION WITH THE SERVICES.

10.       INTERACTIONS WITH SITE USERS

YOU ARE, AND SHALL REMAIN, SOLEY RESPONSIBLE FOR YOUR INTERACTION WITH OTHER USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE. YOU ACKNOWLEDGE AND UNDERSTAND THAT FIT HAS NOT, AND DOES NOT, IN ANY WAY: (A) SCREEN ITS USERS; (B) INQUIRE INTO THE BACKGROUNDS OF ITS USERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS USERS, INCLUDING WITHOUT LIMITATION INFORMATION OR REPRESENTATIONS CONTAINED IN PUBLIC PROFILES. IN NO EVENT SHALL FIT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY USER’S CONDUCT IN CONNECTION WITH SUCH USER’S USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS BETWEEN USERS. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES.

FIT reserves the right, but has no obligation to, monitor or become involved in disputes between you and other users.

11.       ELECTRONIC COMMUNICATIONS

The Services may provide you with the ability to send e-mails, post messages to user forums, enter chat rooms, speak via Internet voice connections or send similar messages and communications to third party service providers, advertisers, other users and/or FIT. You agree to use communication methods available via the Services only to send communications and materials related to the subject matter for which FIT provided the communication method, and you further agree that all such communications by you shall be deemed your user content and shall be subject to and governed by this Agreement. By using any of the communications methods available via the Services, you acknowledge and agree that (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party services providers, advertisers or other third parties are not endorsed, sponsored or approved by FIT (unless expressly stated otherwise by FIT) and (c) communications are not pre-reviewed, post-reviewed, screened, archived or otherwise monitored by FIT in any manner, though FIT reserves the right to do so at any time at its sole discretion in accordance with this Agreement.

12.       USER CONTENT

“User Content” is any content, materials or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.) that you upload or post to, or transmit, display, perform or distribute by means of, the Services, whether in connection with your use of Services or otherwise. YOU HEREBY GRANT FIT AND ITS PARENT COMPANY AND ANY OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, ASSIGNS AND THIRD-PARTY SERVICES PROVIDERS (COLLECTIVELY, THE “FIT PARTIES”) A PERPETUAL, FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, IRREVOCABLE, ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE SERVICES OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND PUBLICITY. YOU FURTHER AGREE THAT THE FIT PARTIES MAY PUBLISH OR OTHERWISE DISCLOSE YOUR NAME AND/OR ANY USER NAME OF YOURS IN CONNECTION WITH THEIR EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE FIT PARTIES OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.

You hereby represent and warrant that you own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the FIT Parties under this section.

FIT reserves the right to (a) refuse access to the Services to anyone for any reason at any time and reserves the right to force forfeiture of any username for any reason; (b) remove, suspend, edit or modify any User Content in its sole discretion, including without limitation any User Content at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if FIT is concerned that you may have violated this Agreement), or for no reason at all and (c) to remove, suspend or block any User Content submissions. FIT also reserves the right to access, read, preserve, and disclose any information as FIT reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of FIT, its users and the public.

13.       PUBLIC FORUMS

“Public Forum” is any area, site or feature offered as part of the Services (including, without limitation public profiles, discussion forums, message boards, blogs, chat rooms, emails or instant messaging features) that enables you (a) to upload, submit, post, display, perform, distribute and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other members or visitors of the Services. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything you upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum and for the consequences of submitting or posting. FIT DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR PUBLIC FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED THEREON.

14.       YOUR RESPONSIBILITY FOR DEFAMATORY CONTENT

You understand and agree that you may be held legally responsible for damages suffered by other users or third parties as the result of your remarks, information, feedback or other content posted or made available on the Services that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, FIT is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content posted or made available on the Services.

15.       OBJECTIONABLE CONTENT

You represent and warrant that you shall not use the Services to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy or pornographic; (b) constitute child pornography; (c) solicit personal information; (d) incite, encourage or threaten physical harm against another; (e) promote or glorify racial intolerance, use hate and/or racist terms, or signify hate towards any person or group of people; (f) glamorize the use of illegal substances and drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this Agreement or any other FIT agreement or policy; or (i) is generally offensive or in bad taste, as determined by FIT (collectively, “Objectionable Content”). FIT DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENT OF THE SERVICES AND SPECIFICALLY DISCLAIMS ANY RESPONSIBLIITY OR LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other remedies, FIT, in its sole discretion, may delete any Objectionable Content from its servers. FIT intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.

16.       PROHIBITED USES

FIT imposes certain restrictions on your use of the Services. You represent and warrant that you will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to FIT or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) create more than one unique public profile; (e) harvest or otherwise collect information about FIT users, including email addresses and phone numbers; (f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Services for any use, including without limitation use on third-party websites; (g) access content or data not intended for you, or log onto a server or account that you are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Services, or any associated system to network, or breach of security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Services by any other user, host or network, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (j) use the Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (k) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Services; (l) post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise; or (m) attempt to modify, reverse engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the FIT Parties in providing the Services. Any violation of this section may subject you to civil and/or criminal liability.

17.       INTELLECTUAL PROPERTY

            (a)  Compliance with Law

            You represent and warrant that, when using the Services, you will obey the law and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE SERVICES. YOU BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.

            (b)  Trademarks

            FIT, the FIT logos (collectively, the “FIT Marks”) are trademarks or registered trademarks of WebMD, LLC. Other trademarks, service marks, graphics, logos and domain names appearing on the Services may be the trademarks of third-parties. Neither your use of the Services, nor this Agreement grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the FIT Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the FIT Marks generated as a result of your use of the Services will inure to the benefit of FIT and you agree to assign, and hereby do assign, all such goodwill to FIT. You shall not at any time, nor shall you assist others, to challenge FIT’s right, title, or interest in or to, or the validity of, FIT Marks.

            (c)  Copyrighted Materials; Copyright Notice

            All content and other materials available through the Services, including without limitation the FIT Marks, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by FIT or are the property of FIT’s licensors and suppliers. Except as explicitly provided, neither your use of the Services nor this Agreement grant you any right, title or interest in or to any such materials. Copyright @ 2010 to the present, Sanford Health. ALL RIGHTS RESERVED.

            (d)  DMCA Policy

            If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want FIT to delete, edit, or disable the material in question, you must provide FIT with all of the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrights works are covered by a single notification, a representative list of such works; (iii) identification of the material that is claimed to be infringed 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 FIT to locate the material; (iv) information reasonably sufficient to permit FIT to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (v) a statement that you have 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 (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to FIT’s designated agent at:

            Attn: Copyright Agent

            Sanford Health

PO Box 5039
Sioux Falls, SD 57117-5039
     

digitalmarketing@sanfordhealth.org

 

18.       DISCLAIMERS; LIMITATION OF LIABILITY

 

            (a)  NO WARRANTIES.

            THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, REGARDING (A) THE SERVICES, (B) FIT CONTENT, (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION VIA THE SERVICES. IN ADDITION, THE FIT PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, AND SYSTEM INTEGRATION. THE FIT PARTIES DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

            (b)  YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA

            YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD THE FIT PARTIES RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA.

            IMPORTANTLY, YOU HEREBY AKCNOWLEDGE THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.

            (c)  LIMITATION OF LIABILITY

            IN NO EVENT SHALL THE FIT PARTIES BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO THE FIT PARTIES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF THE FIT PARTIES TO YOU UNDER ALL CIRCUMSTANCES WILL BE $50.00. YOU AGREE THAT THIS LIMTATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE FIT PARTIES AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

            (d)  APPLICATION

            THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN YOU AND FIT OR BETWEEN YOU AND ANY OF THE FIT PARTIES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE FIT PARTIES ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.

19.       YOUR REPRESENTATIONS AND WARRANTIES

You represent and warrant that your use of the Services will be in accordance with this Agreement and any other FIT policies, and with any applicable laws or regulations.

20.       INDEMNITY BY YOU

Without limiting any indemnification provision of this Agreement, you agree to defend, indemnify and hold harmless the FIT Parties from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (a) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (b) your access to or use of the Services; (c) your provision to the FIT Parties of information or other data; (d) your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation; or (e) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.

The FIT Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the FIT Parties. You may not settle any Claim without the prior written consent of the concerned FIT Parties.

21.       GOVERNING LAW; JURISDICTION AND VENUE

The Services and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Sioux Falls, South Dakota, and shall be governed by and construed in accordance with the laws of the State of South Dakota without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

22.       TERMINATION

            (a)  Termination; Survival

            This Agreement shall automatically terminate in the event that you breach any of this Agreement’s representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by Fit. Upon termination, all rights, licenses and obligations created by this Agreement will terminate, except that Sections 1-10 and 12-23 will survive any termination of this Agreement.

            (b)  Effect of Termination

            Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Services. Subsequent to termination, FIT reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your internet service provider.

            (c)  Legal Action

            If FIT, in FIT’s discretion, takes legal action against you in connection with any actual or suspected breach of this Agreement, FIT will be entitled to recover from you as part of such legal action, and you agree to pay FIT’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The FIT parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.

23.       ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between FIT and you concerning your use of the Services. This Agreement may be unilaterally amended by FIT at any time upon the posting by FIT of an amended version of this Agreement on the Website.

The effective date of this Agreement is August 1, 2013. This Agreement was written in English (US). To the extent any translated version of this Agreement conflicts with the English version, the English version controls.