End-User GYMStar Club Membership & License Agreement (EULA)
SOFTWARE LICENSE TERMS AND CONDITIONS
BY INSTALLING OR USING THE LICENSED SOFTWARE FROM GYMSTAR CALCULATORS LTD. (“GYMSTAR CALCULATORS LTD. ”), THE INDIVIDUAL IF ACTING ON BEHALF OF HIMSELF OR HERSELF (“INDIVIDUAL CUSTOMER“) OR THE INDIVIDUAL WHO IS ACTING ON BEHALF OF AN EDUCATIONAL OR NONPROFIT INSTITUTION, GOVERNMENTAL AGENCY, OR OTHER (“ENTITY CUSTOMER”, THE INDIVIDUAL CUSTOMER AND ENTITY CUSTOMER TOGETHER ARE ”CUSTOMER”) IS AGREEING TO BE BOUND BY THIS SOFTWARE LICENSE & GYMSTAR CLUB MEMBERSHIP AGREEMENT (“AGREEMENT”).
- MEMBERSHIP AGREEMENT
This Membership Agreement (the “Agreement”) is made between GYMStar Club here after referred to as (the “Club”), a Nevada organization, and the undersigned member (the “Member” here after referred to as “Customer”). This Agreement is made because Customer wishes to receive benefits from the Club and Club wishes to provide GYMStar Calculator software to enhance the customer’s endeavors for better health through maintaining records of his or her exercise progress. The “effective date for this agreement is the day the customer installs the software. Therefore the following agree as per this “Agreement”.
“GYMStar Club” organization dedicated to outlining the development of GYMStar Calculator Fitness, GYMStar Bronze, GYMStar Silver, GYMStar Gold, and GYMStar Platinum Professional Calculators. In charge of bring to the Customer upgrades and information for the purpose of managing a successful calculation of weight lifting, training drills, cardio workouts, and cross training. In addition to this is providing communications about athletic events and advertising.
“GYMStar Calculators Ltd.” a Nevada Corporation managing the sale and licensing of distributors to market and sale the GYMStar Series of Calculators, marketing and advertising.
“Activation Key” means, collectively, the specific Serial Number, code, and authorization for each copy of the Licensed Software issued by GYMStar Calculators Ltd.to Customer.
“Electronic Communications” by visiting the GYMStarPro.com Website and providing us with your contact information, you explicitly consent to receive communications from us. If you would not like to receive such communications, please do not purchase GYMStar Club Membership.
“Third Party Links” we may provide hyperlinks to other websites over which we have no control. We are not responsible for the availability of such external sites or resources and will not be responsible or liable for any content, advertising, products, or other materials on or available from such third-party websites or resources.
“Affiliates” or “Affiliate” means an entity, institution, or organization that controls, is controlled by, or is under common control with another entity, institution, or organization, with at least majority ownership.
“Authorized Reseller” means an authorized distributor, authorized reseller, or dealer of the Licensed Software.
“Authorized User” means an employee, contractor, registered student, research assistant, or agent of Entity Customer authorized by GYMStar Calculators Ltd. to use the Licensed Software.
“Concurrent Authorized Users” means Authorized Users who use the software at the same time in accordance with the terms of this Agreement.
“Confidential Information” has the meaning set forth in Section 7 of this Agreement.
“Customer Files” means Customers Files in which the customer’s logged information into LivRight database.
“Ownership of Customers Logged Information and Workout Database” is owned by GYMStar Calculators Ltd. and which are derivative works of the GYMStar Calculators Ltd.Enhancements.
“Documentation” means the user manuals and supporting documentation in electronic form provided within the application under training and instructions.
“Club Membership Fee” means the applicable fee for which Customer Club Membership is activated with the Licensed Software.
“Club Membership (Term) Period” means a perpetual term unless (a) terminated as provided below or (b) a specific fixed term is otherwise set forth in the License and Activation Key.
“Licensed Software” means the specific software licensed to Customer under the terms of this Agreement (as specified in the License and Activation Key issued to Customer), including any Updates and Upgrades thereto.
“Serial Number” means a set of unique characters associated with a specific copy of the Licensed Software issued by GYMStar Calculators Ltd. to Customer (based on the specific configuration and release of the Licensed Software and the license type, license term, and/or number of Concurrent Authorized Users).
“GYMStar Calculators Ltd.Enhancements” means providing information to Customer about athletic events and services including advertising containing health and supplements to improve performance.
“GYMStar Calculators Ltd. Website” means www.GYMStarpro.com.
“GYMStar Files” are files with file extensions of .pdf, xlxs, doc, or data base style. These files may be modified and distributed by the Customer pursuant to the terms and conditions of this license.
“Update” means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.
“Upgrade” means a subsequent version of the Licensed Software that GYMStar Calculators Ltd. designates as a new release and makes generally commercially available or a different flavor of the Licensed Software that GYMStar Calculators Ltd. makes generally commercially available.
“Advertising” means that GYMStar Popups, banners, and postings on Customer GYMStar application and workout reports. By signing our agreement you agree to allow GYMStar Calculators Ltd. GYMStar Club to present to you promotions, contests or sweepstakes and vendors representing services or products for the purpose of engaging you into their products or services.
“Trademarks and Copyrights” GYMStar Calculators™, the GYMStar Calculators™ logo, and all other related trademarks (including, without limitation, graphics, logos, page headers, button icons, scripts and service names) displayed on or within the GYMStarPro Website are trademarks of GYMStar Calculators and any use thereof must be approved by GYMStar Calculators Ltd. (“Marks”). The Marks may not be used in connection with any product or service without express written permission and all goodwill associated with the use of such Marks will inure to the benefit of their respective owners. All content residing on the GYMStarPro Website is the property of GYMStar Calculators Ltd. No underlying right, title or interest in or to any content will pass to you by virtue of accessing the GYMStarPro Website.
- LICENSE AND ACTIVATION KEY, LICENSE GRANTS, THIRD-PARTY RESTRICTIONS AND AUTHORIZATION TO DISTRIBUTE.
4.1 License and Activation Key
GYMStar Calculators Ltd. shall issue Customer a “License and Activation Key” via email, or during installation after purchase The License and Activation Key is hereby incorporated by reference into this Agreement. GYMStar Calculators Ltd. shall issue to Customer a License and Activation Key for each copy of the Licensed Software. Customer is entirely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the copy of the Licensed Software assigned by Serial Number to Customer (e.g., support, additional downloads, or license or subscription upgrade fee charges). The Licensed Software shall be deemed accepted upon the delivery of the Activation Key to Customer by GYMStar Calculators Ltd.
(a) Single-User License Grant
This Section applies only to an Individual Customer whose License and Activation Key issued by GYMStar Calculators Ltd. specifies the “License Type” as “Single User”. A Single-User license is for the use of “GYMStar Bronze, GYMStar Silver, GYMStar Gold, and GYMStar Platinum Professional Calculator” Subject to the terms and conditions of this Agreement. GYMStar Calculators Ltd. grants to Customer a non-assignable, nontransferable license, without the right to sublicense, to use the Licensed Software solely for Customer’s internal application use, and solely by the Individual Customer.
4.3 License to GYMStar Calculators Ltd. Enhancements
THE GYMSTAR CALCULATORS LTD. ENHANCEMENTS ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. GYMSTAR CALCULATORS LTD. AND ITS THIRD-PARTY LICENSORS HEREBY EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED. OR OTHERWISE, WITH RESPECT TO THE GYMSTAR CALCULATORS LTD. ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
Customer shall not, nor permit any person (including any Authorized User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Licensed Software. Vendors or licensees may not remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion of marketing thereof. Vendors may not attach Trojan horse, or other harmful, disruptive, or unauthorized component; or (vii) embed the Licensed Software in any third-party applications.
4.5 Ownership & Copy write Disclosures
The Licensed Software, GYMStar Calculators Ltd.Enhancements, and Documentation contain copyrighted material and other proprietary material and information of GYMStar Calculators Ltd. and/or its licensors. GYMStar Calculators Ltd. and/or its licensors shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, GYMStar Calculators Ltd. Enhancements, and Documentation. Customer will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software, GYMStar Calculators Ltd. Enhancements, or Documentation, or any component thereof.
- TECHNICAL SUPPORT AND UPGRADES AND UPDATES
5.1 Technical Support.
GYMStar Calculators Ltd. agrees to provide Customer with technical support services which include periodic distribution of bug fixes and minor enhancements as Updates scheduled by GYMStar Calculators Ltd. . All registered users of the then-current release of GYMStar Calculator Series and the previous releases are eligible for free but limited technical support. Installation support inquiries by telephone will be accepted by GYMStar Calculators Ltd. during normal business hours. Technical support email inquiries are accepted at any time and will be answered during normal GYMStar Calculators Ltd. business hours. GYMStar Calculators Ltd. will attempt to respond to inquiries within the same business day.
5.2 Updates and Upgrades.
To receive and use an Upgrade, Customer club membership must be in current and agrees to GYMStar Calculators Ltd.’s standard terms and conditions governing the use of that Upgrade. If no such standard terms and conditions are stated by GYMStar Calculators Ltd. , the terms of this Agreement shall apply and the Upgrade shall be deemed Licensed Software. GYMStar Calculators Ltd. will issue a new Activation Key for the Upgrade. For a Single-User license, once GYMStar Calculators Ltd. issues the new Activation Key for an Upgrade version, Customer shall not be able to continue to use the prior version of the Licensed Software.
- LIMITED WARRANTY; WARRANTY DISCLAIMER
6.1 Limited Media Warranty.
For thirty (30) days from the date of purchase, GYMStar Calculators Ltd. warrants that the media on which the Licensed Software, GYMStar Calculators Ltd. Enhancements, and Documentation is furnished shall be free from defects in material and faulty workmanship. Customer may return for replacement, without charge, any media that fails to meet this limited media warranty to GYMStar Calculators Ltd. or the dealer from whom the Licensed Software (and GYMStar Calculators Ltd. Enhancements) was purchased, as applicable, within the 30-day period. GYMStar Calculators Ltd. or the applicable dealer will not be responsible for replacing any media that contains defects due to Customer’s misuse. THE FOREGOING IS CUSTOMER'S SOLE REMEDY, AND GYMSTAR CALCULATORS LTD. 'S SOLE OBLIGATION, WITH RESPECT TO A BREACH OF THE LIMITED MEDIA WARRANTY.
6.2 No Warranty
EXCEPT FOR THE WARRANTIES ABOVE, THE LICENSED SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. GYMSTAR CALCULATORS LTD. HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ON BEHALF OF ITSELF AND ITS LICENSORS ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE AND SUPPORT SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- TERM AND TERMINATION.
Except for Customers with a fixed-term License Period, this Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below. If the License Period is for a fixed term, this Agreement will commence on the Effective Date and shall continue until the earlier to occur of the expiration of the License Period or the termination of Club Membership Agreement as set forth above. If Customer purchases an Upgrade, the term of the Agreement shall be the specific term set forth in the new License and Club Membership with the Activation Key issued for the Upgrade.
Customer may be terminated immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement.
7.3 Effect of Expiration or Termination.
Upon expiration or termination of this Agreement and club membership, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate. In addition, for a fixed-term License Period, upon expiration of the License Period, the Activation Key will expire and the Licensed Software will cease to function. Sections 2.3, 2.6, 2.7, 2.8, 2.9, 4.4, 5.3, 7, 8, 9, and 10 of this Agreement shall survive any expiration or termination of this Agreement.
- FEES AND PAYMENT
8.1 Fees and Payment Terms.
Customer licenses the Licensed Software from GYMStar Calculators Ltd. . This Agreement is between Customer and GYMStar Calculators Ltd. solely. The applicable License Fee and club membership is specified on the GYMStar Calculators Ltd. website or in the specific price proposal provided by GYMStar Calculators Ltd. or an Authorized Reseller. The payment terms and conditions for the License Fee and Club membership are payable to GYMStar Calculators Ltd. and specified on the GYMStar Calculators Ltd. invoice or in the specific price proposal provided by GYMStar Calculators Ltd. . All fees paid to GYMStar Calculators Ltd. are non-refundable except as explicitly permitted from time to time on the GYMStar Calculators Ltd. Website. GYMStar Calculators Ltd. may terminate this Agreement and invalidate Customer’s Activation Key if the billing or contact information is false, fraudulent, or invalid.
Customer and GYMStar Calculators Ltd. agree to maintain the confidentiality of any confidential or proprietary information of one party (the “disclosing party”) received by the other party (the “receiving party”) during the term of, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Licensed Software is copyrighted and shall be deemed GYMStar Calculators Ltd. ’s Confidential Information. The Documentation is copyrighted material of GYMStar Calculators Ltd. . This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information with no less than reasonable care. All the disclosing party’s information remains the property of the disclosing party.
- LIMITATION OF LIABILITY.
10.1 Consequential Damages Waiver.
IN NO EVENT SHALL GYMSTAR CALCULATORS LTD. OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF GYMSTAR CALCULATORS LTD. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
Notices hereunder shall be in writing and addressed to Customer at the address provided when purchasing this license or, in the case of GYMStar Calculators Ltd. , when addressed to GYMStar Calculators Ltd. LP, Attn: Director of Operations, 5251 Lindell Rd. Suite 103 Las Vegas NV 89118