|ActiveLink Subscription Terms|
|1. Scope of Agreement|
WeightWatchers.com, Inc. (together with its affiliates, “Weight Watchers”) has collaborated with Philips Consumer Lifestyle, a division of "Philips Electronics North America Corporation" (“Philips”) (collectively, "we," "us," or "our”) to make available the ActiveLink offering. Unless otherwise indicated, the following additional terms and conditions (“Additional Terms”) apply to your use of (i) the ActiveLink activity monitor and related accessories (the “Monitor”), (ii) the ActiveLink software available at www.getactivelink.com (the “Software”), (iii) any activity, data or other information generated or provided by us in connection with the Software or the ActiveLink offering (the “Data”), and (iv) your access and use of the getactivelink.com website (the “ActiveLink Website”) (collectively, “ActiveLink”). These Additional Terms supplement the terms and conditions of your existing subscription to a Weight Watchers offering, such as Weight Watchers Online, Weight Watchers eTools or Weight Watchers Monthly Pass (your “Subscription”), as set forth in either the
Subscription Agreement or
Monthly Pass Subscription Agreement, as applicable (the “Subscription Agreement”), and all such terms and conditions, as well as the definitions set forth in the Subscription Agreement, shall apply to your use of ActiveLink unless expressly stated below and the ActiveLink Website will be considered a Website under the Subscription Agreement. By using ActiveLink, you agree to be bound by these Additional Terms and the terms of your Subscription Agreement.
|2. Binding Agreement|
We may, in our sole discretion, change, modify, add or remove provisions of these Additional Terms at any time, either separately from or together with changes to the Subscription Agreement.
3. ActiveLink License
A. All right, title and interest in and to the Software, Data, and patents, trademarks, trade secrets, copyrights, and other intellectual property rights pertaining to the Software and Data (the “Intellectual Property”) shall remain in us and/or our suppliers and licensors. Without limiting the foregoing, the Software and Data are protected by the copyright law of the United States and international copyright treaties, as well as other proprietary rights.
B. The Software is provided to you under license. Your use of the Software and the Data is subject to and limited by the license terms set forth below.
C. We grant you a non-exclusive, non-transferable, non-sublicensable license under the Intellectual Property to use the Software and Data subject to the terms and conditions set forth in these Additional Terms. You may: (a) install and use the Software in object code format solely for your personal use via the ActiveLink Website in connection with the ActiveLink experience, (b) use the Software and Data for personal, non-commercial purposes only, and (c) view the Data on the ActiveLink Website or some other means as we may provide. We may make upgrades to the Software available by posting these on the ActiveLink Website, but are not obligated to do so. Such upgrades may be made available pursuant to these Additional Terms or the release of such upgrades to you may be subject to your acceptance of other terms and conditions.
D. Your Monitor is personal to you and cannot be shared or given to another person. You may not use, or permit others to use, the Monitor, Software, ActiveLink Website or Data except under the terms expressly listed above and in your Subscription Agreement. Without limiting the previous sentence, you shall not, and shall not permit anyone else to: (a) use the Software or Data for service bureau, time-sharing or other similar purposes; (b) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Data; (c) copy the Software or Data (except as permitted above); (d) rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to the Software or Data; (e) develop, sell or distribute applications that integrate with the Software or otherwise make use of the Data; or (f) remove any product identification, copyright notices, or other proprietary notices or labels on or relating to the Software or Data.
|E. You acknowledge that you must have a current Subscription in order to subscribe to ActiveLink. In addition, you must satisfy such computer and device requirements as we may specify to install and use the Monitor and Software. We reserve the right to change those requirements, and the method by which you may obtain the Software and Data, from time to time.
F. The Software may contain components that are subject to open-source terms. In particular the Software contains ZIP and OpenSSL. You may download and use this open source software under the conditions stated in the respective license terms. These terms and conditions do not apply to open source software which is licensed separately. Your license rights do not include any right or license to use, distribute or create derivative works of the Software in any manner that would subject the Software to the terms of any license that directly or indirectly (1) creates or purports to create obligations for us with respect to the Software or derivative works thereof or (2) grants or purports to grant any third party any rights or immunities under the Intellectual Property or proprietary rights in the Software or derivative works thereof.|
|4. Charges and Fees|
As an ActiveLink subscriber, you may be charged an initial upfront fee for the Monitor as well as a recurring monthly fee for your ActiveLink subscription. You agree to pay, using a valid credit card (or other form of payment which Weight Watchers may accept from time to time), such fees, applicable taxes, and other charges and fees incurred in order to use or access ActiveLink. We reserve the right to increase fees, or to institute new fees at any time, upon advance notice communicated to you through a posting on the ActiveLink Website or such other means as we may deem appropriate (including email or conventional mail).
After your payment for your initial billing period, Weight Watchers will automatically charge your credit card (or other account, if applicable) monthly on the day of the calendar month of the renewal date for your subscription if you are a Weight Watchers Online or Weight Watchers eTools subscriber, or up to 15 days prior to the start of each renewal period if you are a Monthly Pass subscriber, in each case unless you have cancelled your subscription before you are charged for the relevant renewal period.
The renewal charge for your ActiveLink subscription will be the same as the prior period's charge, unless we notify you at the time of sign-up or prior to the beginning of the renewal period as described above, or if you were previously signed up for a discount rate for which you are no longer eligible.
In the event Weight Watchers cannot charge your account, we reserve the right to terminate your ActiveLink subscription.
You acknowledge that we have the right to restrict access to, terminate and/or otherwise modify the ActiveLink experience for any reason, including but not limited to a breach of any provision of the Subscription Agreement or these Additional Terms. Your license to use the Software and Data shall terminate automatically upon termination of the Subscription Agreement, these Additional Terms or your subscription to ActiveLink. On termination, you must destroy all copies of the Software and Data. 6. Additional Cancellation Terms
You can cancel your subscription to ActiveLink at any time by visiting www.weightwatchers.com/cancel/activelink or by such other means as we may provide from time to time. You may cancel your subscription to ActiveLink without canceling your Subscription. However, if you cancel your Subscription, Weight Watchers may cancel your subscription to ActiveLink as well. Except for your failure to satisfy limitations we set based on demographic, geographic, health or other similar criteria, you agree that all fees and charges assessed by Weight Watchers in connection with ActiveLink are nonrefundable. Nonrefundable fees include the initial upfront fee for your purchase of the Monitor, which is nonrefundable after you have opened the Monitor’s exterior packaging, and the full ActiveLink subscription fee for any period for which you have prepaid (regardless of whether that period has elapsed or whether you logged onto the ActiveLink Website or used ActiveLink during that period).If your cancellation of your ActiveLink subscription is due to your failure to satisfy limitations we set based on demographic, geographic, health or other similar criteria prior to the end of a period for which you have incurred a charge, Weight Watchers will provide a refund for any unused portion of such period in accordance with the refund policy we have in effect at such time. If we cancel or terminate your ActiveLink subscription (as opposed to you canceling your subscription) prior to the end of a period for which you have incurred a charge, with the exception of any fixed upfront fee (such as the Monitor purchase fee), Weight Watchers will provide a refund for any unused portion of such period on a pro rata basis.
|7. Data and Privacy|
ActiveLink is only intended to assist users in their personal activity efforts. Neither Weight Watchers nor Philips is a medical organization or healthcare provider and we cannot provide medical advice or diagnosis. As such, nothing contained in ActiveLink experience should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. Exercises, workouts and activity may result in injury if done incorrectly.
We strongly urge you to consult with your physician (or primary health-care provider) before starting any activity and/or weight loss plan. We also urge you to get periodic medical checkups. The ActiveLink Website and ActiveLink experience are intended for use only by healthy adult individuals. The ActiveLink Website and ActiveLink are not intended for use by minors, pregnant women, or individuals with any type of health condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of activity effort or regimen. You should talk with your doctor before beginning any exercise program, particularly if you suffer from high blood pressure or dizziness; have had a stroke; have a heart, lung, liver or kidney condition; or if you have recently been hospitalized. If you are more than 40 pounds overweight, you should not work out at a high intensity level without professional supervision.
|9. Your Access to the ActiveLink Website|
If you do not comply with these Additional Terms or the Subscription Agreement at any time, Weight Watchers reserves the right to cancel or terminate your password, user account, and/or use of the Software, Data and/or ActiveLink Website.
You agree not to register or subscribe for more than one ActiveLink account, create an ActiveLink account on behalf of someone else, or create a false or misleading identity on the ActiveLink Website. If your registration or subscription is revoked for any reason, you agree not to register or subscribe again using another user name or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to terminate any new accounts you have registered without notice to you, or to exercise any other remedies available to us under these Additional Terms, the Subscription Agreement or by law.
10. Monitor Warranty
Your Monitor is subject to these warranty terms.
|11. Additional Trademark |
PHILIPS is a registered trademark of Koninklijke Philips N.V. All rights reserved. 8/1212. Additional Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE ACTIVELINKWEBSITE CONTENT, ACTIVELINK WEBSITE MATERIALS, SOFTWARE AND DATA ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATABILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER WEIGHTWATCHERS.COM, PHILIPS, NOR THEIR RESPECTIVE AFFILIATES, NOR ANY OF THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE SOFTWARE OR DATA WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE ACTIVELINK WEBSITE OR THE SERVERS THAT MAKE THE ACTIVELINK WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OR ACCESS TO THE ACTIVELINK WEBSITE OR ANY USE OF THE MONITOR, THE SOFTWARE AND DATA IS AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR USE.
EXCEPT AS EXPRESSLY SET FORTH IN THE ACTIVELINK WARRANTY AND HEREIN, NEITHER WEIGHT WATCHERS, PHILIPS, NOR THEIR RESPECTIVE AFFILIATES, NOR ANY OF THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MONITOR, SOFTWARE, ACTIVELINK WEBSITE OR DATA IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
|13. Additional Limitation of Liability|
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NONE OF WEIGHT WATCHERS, PHILIPS, THEIR RESPECTIVE AFFILIATES, NOR ANY OF THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE MONITOR, SOFTWARE, ACTIVELINK WEBSITE OR DATA; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM USE OF THE MONITOR, SOFTWARE, ACTIVELINK WEBSITE, OR DATA, OR ANY DEFECT THEREIN; (C) USE OF ANY CONTENT ON THE ACTIVELINK WEBSITE OR ANY WEBSITE LINKED TO THE ACTIVELINK WEBSITE, (D) UNAUTHORIZED ACCESS TO, USE OF OR ALTERATION OF YOUR MONITOR, TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE ACTIVELINK WEBSITE; OR (F) ANY OTHER MATTER RELATING TO THE ACTIVELINK WEBSITE.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACTIVELINK EXPERIENCE (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR THE ACTIVELINK EXPERIENCE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE ACTIVELINK WEBSITE, MONITOR, SOFTWARE OR DATA, OR WITH ANY PROVISION OF THESE ADDITIONAL TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR ACTIVELINK EXPERIENCE. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless and, at our option, defend each of Weight Watchers and Philips and our respective officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorney's fees and expenses) arising from your improper use of ActiveLink (including, without limitation, the ActiveLink Website) your violation of these Additional Terms or the Subscription Agreement, or the infringement or use by you or any other user of your account, of any intellectual property or other right of any person or entity.
Effective Date: May 31, 2012