WW Application Agreement

 

This Agreement (this “Agreement”) is a legal agreement between you and WW Services Pty Ltd, on behalf of itself and its affiliates (collectively, “WW”, “we,” “us” or “our”). This Agreement governs your use of the WW software application (the “Application”) you have chosen to download for use on your iPhone, iPad or iPod touch, as applicable (collectively, “Handhelds”). By accepting this Agreement and/or using the Application, you agree to be bound by this Agreement.

Both we and you acknowledge that this Agreement is between us and you, and that Apple, Inc. and its subsidiaries (“Apple”) is not a party to this Agreement. We are solely responsible for the content of the Application.

If you subscribe to a fee-based product or offering (such as Digital, Digital + Studio™, or Personal Coaching + Digital) (collectively “Subscription Offerings”), this Agreement supplements the relevant Subscription Agreement governing your subscription, and all such terms and conditions shall continue to apply unless expressly stated below. The provisions of your Subscription Agreement applicable to the relevant Subscription Offering, shall apply to the Application, regardless of whether or not you pay an additional fee for your subscription to access the Application. We may, in our sole discretion, change, modify, add or remove provisions of this Application Agreement at any time. By using the Application after we post any changes to this Agreement or otherwise notify you of such changes, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to this Agreement, you should not use our Application.

We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy, which is incorporated into this Agreement by this reference.

 

1. Product License

A. The Application is provided to you under license. Your use of the Application, and any dietary or other information or data downloaded by or in connection with the Application (the “Data”), is subject to and limited by the license terms set forth below.

B. We grant you a limited, non-exclusive, non-transferable license to use the Application and Data subject to the terms and conditions set forth in this Agreement. You may: (a) install the Application on one Handheld at a time; (b) use the Application and Data for personal, non-commercial purposes only; (c) view the Data solely in connection with the Handheld Application on the screen of such Handheld; and (d) make one copy of the Application and Data for back-up, archival purposes, provided such copy contains all of the original proprietary notices provided with or otherwise relating to such Software and Data.

This Agreement will also govern any software upgrades provided by WW that replace and/or supplement the original Application, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. Apple has no obligation to provide you with any updates, maintenance or support services for the Application.

C. You may not use, or permit others to use, the Application or Data except under the terms expressly listed above. Without limiting the previous sentence, you shall not, and shall not permit anyone else to: (a) use the Application on any Handheld that you do not own or control; (b) use the Application or Data for service bureau, time-sharing or other similar purposes; (c) modify, translate, reverse engineer, decompile, attempt to derive the source code of, disassemble (except to the extent that this restriction is expressly prohibited by law), modify or create derivative works based upon the Software or Data; (d) copy the Application or Data (except as permitted above), any updates or any part thereof; (e) rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to the Application or Data; (f) develop, sell or distribute applications that integrate with the Application or otherwise make use of the Data; (g) remove any proprietary notices or labels on or relating to the Application or Data; or (h) use the Application or Data in any manner that could impair any website that we may own or operate currently or in the future, including but not limited to the WW website located at ww.com/au (the “Website”) or in any way or interfere with any party’s use and enjoyment of the Website.

D. You acknowledge that you must be a current subscriber to certain of our Subscription Offerings in order to access the subscriber-only features of the Application.

E. All right, title and interest in and to the Application and Data (including without limitation all intellectual property rights) shall remain in us and/or our suppliers and licensors. Without limiting the foregoing, the Application and Data are protected by the copyright law of Australia, New Zealand, the United States and international copyright treaties, as well as other proprietary rights.

In the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

F. To use or access the Application, you represent that you are a citizen or resident of Australia or New Zealand with a valid mailing address in Australia or New Zealand.

 

2. Termination

You acknowledge that we have the right to restrict access to, terminate and/or otherwise modify the Application for any reason, including but not limited to a breach of any provision of the relevant Subscription Agreement, the terms and conditions application to the use of our Website or this Application Agreement. If you are a subscriber to a Subscription Offering, your license to access the subscriber-only features of the Application will terminate automatically upon termination of the Subscription Agreement or cancellation of your subscription to the relevant Subscription Offering. On termination, you must destroy all copies of the Application and Data.

 

3. Additional Disclaimers of Warranties

PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:

THE APPLICATION 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 WW, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE APPLICATION OR DATA WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.

YOUR DOWNLOAD AND USE OF THE APPLICATION AND DATA IS AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR HANDHELD OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

NEITHER WW, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APPLICATION OR DATA IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION, AND ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO FAILURE TO CONFORM WITH A WARRANTY MADE UNDER THIS AGREEMENT (IF ANY), WILL BE WW SOLE RESPONSIBILITY.

 

4. Additional Limitation of Liability
 
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES, SUPPLIERS AND LICENSORS SHALL NOT 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 APPLICATION OR DATA; OR (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM USE OF THE APPLICATION OR DATA, OR ANY DEFECT THEREIN. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH THE APPLICATION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR THE APPLICATION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE APPLICATION OR DATA, OR WITH ANY PROVISION OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE APPLICATION.

 

5. Export and Other Laws

You may not use the Application or Data in contraven­tion of any federal, state or other applicable laws. Without limiting the foregoing, the Application and Data may be subject to United States and other export control laws, and you agree to comply strictly with all such laws which are now or hereafter in effect. In particular, but without limitation, you may not export or re-export the Application: (a) into any United States embargoed countries or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United Sates Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States or other applicable law, including, without limitation, the development, design, manufacture or production of missiles, nuclear or chemical or biological weapons.

 

6. Third Party Beneficiaries

Apple is a third-party beneficiary to this Agreement. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement with respect to the Application.

 

7. Product Questions, Comments, Claims and Contact Information.

We, and not Apple, are responsible for addressing any questions, comments or claims relating to the Application and/or your use of the Application, including but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. If you have any comments or questions, please contact WW at:

WW Services Pty Ltd.
Level 5, 1 - 3 Smail Street, Ultimo, NSW 2007
Attn: Customer Service
E-mail: customerservice.anz@ww.com

 

8. Indemnification

You agree to indemnify, hold harmless and, at our option, defend us and our affiliates, and our and their 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 attorneys fees and expenses) arising from your improper use of this Application, your violation of this Agreement, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.

 

9. Governing Law and Choice of Forum

Residents of Australia:

If you are a resident of Australia, this Agreement shall be governed by and construed in accordance with the laws of the state of New South Wales, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Application or this Agreement shall be filed only in the state or federal courts located in New South Wales and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

Residents of New Zealand:

If you are a resident of New Zealand, this Agreement shall be governed by and construed in accordance with the laws of New Zealand, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Application or this Agreement shall be filed only in the state or federal courts located in New Zealand and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

 

10. Miscellaneous Terms

In any action against us arising from the use of this Application, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees.

If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

(Last modified as of 7 June 2011)