Weight Watchers Application Agreement
This Agreement (this “Agreement”) is a legal agreement between you and WeightWatchers.ca, Limited, on behalf of itself and its affiliates (collectively, “Weight Watchers”, “we,” “us” or “our”). This Agreement governs your use of the Weight Watchers 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 (such as Weight Watchers Online or Weight Watchers eTools) or to Monthly Pass (collectively “Subscription Offerings”), this Agreement supplements the relevant Subscription Agreement governing your subscription, located at http://www.weightwatchers.ca/legal/gensubagreement.aspx (the “Subscription Agreement”), 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.
1. Product Licence
A. The Application is provided to you under licence. 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 licenceterms set forth below.
B. We grant you a limited, non-exclusive, non-transferable licence 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 Weight Watchers that replace and/or supplement the original Application, unless such upgrades are accompanied by a separate licence, in which case the terms of that licence 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 Weight Watchers website located at www.weightwatchers.ca (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 copyright law 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 Canadian citizen or resident with a valid Canadian mailing address.
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 licence 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 WEIGHT WATCHERS, 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 WEIGHT WATCHERS, 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 WEIGHT WATCHERS 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. Open Source Usage
This Application contains certain open source components (the “ZBar Components”) the source code of which is available at http://zbar.sourceforge.net/iphone. The ZBar Components are licensed under the LGPL Version 2.1 license (the “LGPL”), available at http://www.gnu.org/licenses/old-licenses/lgpl-2.1.html. For the ZBar Components, the following notices apply:
Copyright 2007-2011, Jeff Brown et al
By accepting this Agreement, you agree to be bound by all the terms and restrictions of the LPGL with respect to the ZBar Components, including keeping all copyright notices intact for the duration of your use of the Application and modifying and/or redistributing such components only in accordance with the terms of the LGPL.
7. 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.
8. 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 Weight Watchers at:
11 Madison Avenue, 17th Floor,
New York, NY 10010
Attn: Customer Service
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.
10. Governing Law and Choice of Forum
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, without giving effect to any principles of conflicts of law.
11. 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 7/6/2011)