Effective Date: September 1, 2023

The Fiziolog.com website and its associated services, software, information, and content (collectively “Website”) is owned and operated by Fiziolog, LLC (“Fiziolog”, “our”, “us”, “we”), a Michigan Limited Liability Company. Fiziolog has adopted this Terms of Use Agreement (“Agreement”) to inform you (“User(s)”) of your rights and duties when using the Website. If you do not agree with the terms and conditions of this Agreement, you are expressly prohibited from using the Website and must discontinue your use immediately.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE WEBSITE AND ASSOCIATED SERVICES. BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

FIZIOLOG MAY, FROM TIME TO TIME, AND RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE OR THIS AGREEMENT. IN THE EVENT FIZIOLOG MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE OR THIS AGREEMENT, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.

About the Website

Fiziolog is software-as-a-service that quantifies and assesses a User’s health and fitness levels based on their age and gender in the following main categories: Body Composition; Balance; Cardiovascular Fitness, Muscular Fitness, and Range of Motion. The Website provides real-time feedback to Users in each of the five main categories to allow Users to easily compare their health and fitness levels with those of their peers. In addition, the Website may be used by practitioners, such as healthcare professionals, trainers, and physical therapists, with their respective patients and clients.

Warranties and Representations

You warrant and agree that you have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that you are a human individual that is eighteen (18) years of age or older. If you are under eighteen (18) years of age but at least thirteen (13) years of age, you must present this Agreement to your parent or legal guardian for their review. You warrant that you are not prohibited from assenting to this Agreement by any preexisting Agreement.

You warrant and represent that any and all information that you provide to Fiziolog and the Website is accurate and valid. You agree to comply in good faith with the terms of this Agreement.

You will not use the Website in any way that violates the rights of third parties, and you agree to comply with any and all applicable local, national, state, provincial, and international laws, treaties, and regulations. Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use the Website. The Website is operated in the United States and Fiziolog makes no representation that its Website or services or products are appropriate, lawful, or available for use in other locations.

Ownership of Website and Fiziolog Content

The Website, proprietary content, including designs, text, graphics, images, information, services, data, software (and the selection and arrangement thereof), logos, and code (collectively, the “Website Materials”) are all property of Fiziolog and are protected by intellectual property laws. Except as permitted under the terms of this Agreement, Fiziolog expressly reserves all right, title, and interest in and to the content and services of the Website and Website Materials, aggregate data, reports, analytics, and other software used by Fiziolog in the analysis of User Content (as defined below) and/or the provision of the Website. This includes, without limitation, any derivatives, improvements, or enhancements thereof conceived or otherwise developed by or on behalf of Fiziolog, and any and all patents, trademarks (common law or registered), and copyrights (common law or registered). The Website, including its look and feel, color selections, layout, and arrangement, is the trade dress of Fiziolog.

The Website is protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using the Website Materials for any purposes not explicitly stated in this Agreement. Specifically, and except where otherwise allowed under this Agreement, you are prohibited from framing, scraping, aggregating, hacking, reverse engineering, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly the Website Materials, whether in whole or in part, without the prior written consent of Fiziolog.

Fiziolog hereby grants you a limited, non-exclusive, royalty free, non-assignable, and revocable license to use the Website for its customary and intended purposes. Violation of the terms of this Agreement or use of the Website Materials for a use outside of its customary and intended purposes, such as, but not limited to downloading (other than page caching) or modifying the Website or any portion of it will result in the termination of this license. Absent prior written permission from Fiziolog, you are not permitted to reproduce, prepare derivative works, distribute copies, perform, display, or use for commercial purposes the Website Materials. This license is revocable at any time, and any rights not expressly granted herein are reserved to Fiziolog.

Your Content

The Website may allow Users to input, import, upload, post, store, or otherwise make available information and/or data in connection with the use of the Website (collectively, “User Content”). You are solely responsible for your use of any User Content and use such User Content at your own risk. By submitting any User Content to the Website, you represent and warrant that you own and control all of the rights to the User Content that you submit, or that you have the lawful right to distribute and reproduce such User Content and to grant Fiziolog the license for the User Content described below and that your use and posting of such User Content does not violate any terms of this Agreement.

You warrant that any User Content that you submit to the Website will not violate the rights of third parties, including, but not limited to, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.

You agree that you are solely responsible for any User Content that you submit to the Website. Fiziolog acts solely as a repository of data, and takes no responsibility and assumes no liability for any User Content stored or uploaded by you or any third party, or for any loss or damage thereto. Although Fiziolog has no obligation to screen, edit, or monitor any of the User Content posted anywhere in connection with the Website, Fiziolog reserves the right, and has absolute discretion, to remove any such User Content at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you submit to the Website.

Fiziolog does not own the User Content you submit to the Website, but in submitting User Content to the Website, you grant Fiziolog an irrevocable, non-exclusive, royalty-free, worldwide, and perpetual license to use your User Content for the customary and intended purposes of the Website and any purpose related thereto, including, without limitation, to reproduce, modify, aggregate, prepare derivative works from, distribute copies, sell, display, research, and use any of the User Content. These purposes may include, but are not limited to, providing you or third parties with the Website or its associated services, improving the Website or its associated services, and archiving or making backups of the Website. You agree to waive all moral rights in and to your User Content across the world, whether you have or have not asserted moral rights in or to your User Content.

Website Use and Account Creation

In order to access or use the Website, you must pay a fee and create an account by providing certain required information of yourself. When subscribing to or creating an account with Fiziolog, you are agreeing to receive email notifications from Fiziolog and other third-parties. The email notifications from Fiziolog contain an unsubscribe feature that allows you to “opt out” from future notifications. Please see the Website’s Privacy Policy, which is incorporated into this Agreement by reference, regarding the collection and use of this and other information about you. All Users’ information will be used consistent with the Privacy Policy. Fiziolog does not endorse you or discriminate based upon any information provided by you or made available through the Website.

Users have a duty to ensure that the information provided through the Website and their account is truthful, current, complete, and accurate. You understand and agree that you have an ongoing duty to update and keep current the information provided through the Website and your account, if and when that information changes. You are expressly prohibited from providing information that in a way impersonates another person, contains offensive or obscene language, or otherwise violates the rights of a third party. You expressly agree that you will not interfere with or disrupt a third party’s enjoyment and use of the Website. Fiziolog reserves the right to restrict access to, monitor, suspend, disable, or delete any Users and/or Users’ information at any time, in its sole discretion, and without prior warning. You agree to hold harmless and indemnify Fiziolog for any damages that arise out of or in relation to the use of the Website.

Users agree to keep your account secure from unauthorized access. Users will log into their account using their e-mail and account password. Users should not reveal their account information and/or passwords to others. Users accept full responsibility for any and all use of their account, whether authorized or unauthorized. In the case of unauthorized access to a User’s account, you agree to contact Fiziolog immediately.

Fiziolog is under no obligation to preserve your account and/or data for any length of time and will not be responsible for any loss of data. Fiziolog is under no obligation to provide you with the data associated with your Website use, except as otherwise provided in the Privacy Policy.

Fees and Payment

Payment for your full access and use of the Website will be done via a monthly or annual subscription fee. Payments made through the Website are processed through a third-party payment processor. Fiziolog reserves the right to change the service fee amount or format of payment at any time. Users agree that they are responsible for paying the price indicated by Fiziolog, as well as all applicable taxes, duties, levies, or charges imposed by any governmental entity anywhere in the world in connection with their use of the Website and purchases made therefrom. You understand and agree that Fiziolog will not be held liable for any User’s failure to complete a transaction entered into through the Website. By using a third-party payment processor, you agree that you may be subject to the Terms and Policies of such third-party payment processor.

Your subscription to the Website will automatically renew unless you or Fiziolog terminate pursuant to this Agreement.

Prohibited Uses

You expressly agree that you will not use the Website to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website.

Specifically, you are prohibited from:

• Posting or transmitting content that:
  • Infringes upon the intellectual property rights of others
  • Threatens or encourages bodily harm and/or destruction of property or that is offensive, defamatory, derogatory, pornographic or obscene;
  • Promotes hate, violence, harassment, stalking, discrimination, terrorism, or intolerance of any kind based upon race, ethnicity, religion, sexual orientation, or disability;
  • Incites any illegal activity or unlawful sexual solicitation;
  • Impersonates another or is fraudulent, inaccurate, or misleading;
  • Constitutes an unwanted commercial solicitation, a phishing scam, a pyramid scheme, or a chain letter;
  • Intends to collect personal or personally identifiable information from others;
  • Violates any term or condition of this Agreement;
• Using a robot, spider, scraper, or other automated technology to access the Website;
• Imposing a disproportionate load on the Website or its server infrastructure or otherwise attempting to interfere with the operation of the Website;
• Attempting to gain access to the private data or personal information of a Website user or third party;
• Circumventing the technological and physical security measures of Fiziolog;
• Suggesting an affiliation with or endorsement by Fiziolog.

If you encounter content or witness behavior that you believe is inappropriate and violates this Agreement, you may report it to Fiziolog by sending an email to support@fiziolog.com

Access to certain areas of the Website may be restricted. Any access or use of the Website or the Website Materials other than as specifically authorized in this Agreement, without our prior written permission, is strictly prohibited and will terminate the license granted in this Agreement. Fiziolog reserves the right to restrict access to areas or features of the Website, or the whole Website, at the discretion of Fiziolog. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights.

Mobile Devices

The Website is fully accessible via a mobile device, such as a phone, watch, tablet, computer, etc. To the extent you access the Website through a mobile device, your wireless carrier’s standard charges, rates, and fees may apply. Fiziolog is not responsible for any fees or errors that occur while accessing the Website via mobile device.

Section 230 of Communications Decency Act

You acknowledge and agree that Fiziolog is an interactive computer service provider under Section 230 of the Communications Decency Act. Though Fiziolog may edit, remove, or control the content displayed through the Website, you agree that Fiziolog will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Website or otherwise.

Third Party & Affiliate Links

You understand that the Website may contain links to third party websites, applications, or services that Fiziolog does not own or control. You agree that Fiziolog will not be held responsible or liable for the content of third party websites, applications, or services and that the inclusion of those websites, applications, or services within the Website does not constitute Fiziolog’s endorsement of, recommendation of, or affiliation with any of those websites, applications, or services.

No Endorsement

From time to time, Fiziolog will refer to commercial products, processes, services, experts, and/or websites. Any reference is not intended to be an endorsement or statement that the information provided by the other party is accurate. Fiziolog does not endorse any commercial product, process, service, expert, or website. The views and opinions of affiliates, contributors, and others expressed on this Website do not necessarily state or reflect those of Fiziolog and are not intended to be used for product endorsement purposes.

Term and Termination

This Agreement will remain in full force and effect so long as the Website is in operation. Fiziolog may terminate this Agreement without liability at any time, without notice, and for any reason, including but not limited to for your violation of a term or condition of this Agreement.

You are solely responsible for properly closing any User account you may have with Fiziolog if you no longer desire to pay for or use the relevant subscriptions or services. Written notice of termination by you must be provided to Fiziolog at least 48 hours prior to your renewal date, and such termination becomes effective at the end of the then-current subscription term. To close your User account or terminate your subscription to the Website, please email us at Support@fiziolog.com or as otherwise indicated by Fiziolog.

Upon suspension or termination for any reason, Fiziolog will cease providing the suspended or terminated services and any balance you owe to Fiziolog will become immediately due and payable.

Professional Advice Disclaimer

THE WEBSITE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND RESEARCH PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. THE USE OF ANY INFORMATION PROVIDED ON THIS SITE IS SOLELY AT YOUR OWN RISK.

NOTHING STATED OR POSTED ON THIS WEBSITE OR AVAILABLE THROUGH ANY SERVICES PROVIDED BY FIZIOLOG ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE.

THE WEBSITE IS CONTINUALLY BEING UPDATED AND FIZIOLOG MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS, OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH AND FITNESS INFORMATION AND DATA PROVIDED ON THE WEBSITE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION AND DATA PROVIDED ON THE WEBSITE WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS OR STUDIES.

Disclaimer of Warranties

FIZIOLOG DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE. FIZIOLOG PROVIDES THE WEBSITE AND ASSOCIATED SERVICES ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.

FIZIOLOG WILL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY CONTENT POSTED ON THE WEBSITE, INCLUDING BUT NOT LIMITED TO ANY ADVICE OR MARKETING PROVIDED BY ANY THIRD PARTY, ANY THIRD-PARTY LINKS POSTED ON THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE. FIZIOLOG IS A SERVICE PROVIDER AND DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, ALTERATION, AND/OR DESTRUCTION OF IDENTITY. FIZIOLOG RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.

FIZIOLOG WILL NOT BE HELD LIABLE FOR NETWORK, INTERNET, COMPUTER, HARDWARE, OR SOFTWARE PROGRAM MALFUNCTIONS, FAILURE, DELAYS, OR DIFFICULTIES WITH THE WEBSITE AT ANY TIME.

Limitation of Liability

FIZIOLOG WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT FIZIOLOG CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCE IS THE AMOUNT THAT YOU PAID, IF ANY, FOR SERVICES THROUGH THE WEBSITE, AND IN NO CASE WILL THAT AMOUNT EXCEED $100. IF NO AMOUNT IS PAID BY YOU TO FIZIOLOG, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.

THE WEBSITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. FIZIOLOG IS NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES. IF YOUR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, YOU SHOULD SEEK LEGAL COUNSEL TO UNDERSTAND YOUR LEGAL RIGHTS UNDER THE LAW.

Indemnification

You agree to hold harmless, indemnify, and defend Fiziolog, its officers, employees, agents, successors, and assigns, from and against any and all claims, demands, losses, damages, rights, and actions of any kind, including, but not limited to, property damage, infringement, personal injury, and death, that either directly or indirectly arise out of or are related to your use of the Website, your use or provision of any services made through the Website, your reliance upon advice provided through the Website, your submission of User Content to the Website, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party.

Your obligation to defend Fiziolog under the terms of this Agreement will not provide you with the right to control Fiziolog’s defense, and Fiziolog reserves the right to control its defense and choose its counsel regardless of your contractual requirement to indemnify Fiziolog.

No Assignment

You acknowledge and agree that you are prohibited from assigning your rights and obligations under this Agreement. Fiziolog may assign its rights and obligations under this Agreement at any time, including but not limited to in a sale of the Website.

Jurisdiction, Governing Law, and Resolution of Disputes

This Agreement will be interpreted, governed, construed, and enforced in accordance with the laws of the United States of America and the State of Michigan without giving effect to any conflicts of laws principles. The parties submit to and agree to personal jurisdiction in Michigan, with venue proper in Oakland County, Michigan.

YOU AND FIZIOLOG AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITE, OR THE PURCHASE OF SERVICES FROM FIZIOLOG, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN OAKLAND COUNTY, MICHIGAN AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF MICHIGAN AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND FIZIOLOG AGREE THAT THE SITUS OF THIS AGREEMENT IS IN THE STATE OF MICHIGAN. YOU AND FIZIOLOG AGREE TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.

Severability

If any provision of this Agreement is found to be invalid or unenforceable for any reason whatsoever, the remaining provisions will remain valid and unimpaired and will continue in full force and effect.

Integration

Fiziolog hereby incorporates its Privacy Policy into this Agreement. This Agreement and its incorporated Privacy Policy constitutes the entire agreement between the parties with respect to the use of the Website and its associated services and products. You acknowledge and agree that any additional provisions that may appear in any communication from you will not bind Fiziolog.

No Waiver

You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.

Child Online Privacy Protection Act

The Website is not directed to persons under the age of thirteen (13) and Fiziolog will not knowingly collect information from children under the age of thirteen (13). If Fiziolog inadvertently collects such information, Fiziolog will delete the information in accordance with its security protocols.

Limitation on Actions

FIZIOLOG AND YOU BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE OR ANY SERVICES PURCHASED THROUGH THE WEBSITE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.

YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST FIZIOLOG ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

Reservation of Rights

All rights not expressly granted herein are reserved to Fiziolog.

Notices

Any notice required by this Agreement must be in writing, and must be emailed to Support@fiziolog.com