This Pathways to Nutrition Mobile App End User License Agreement (this “EULA”) is between Pathways to Nutrition, Inc. (“Pathways”) and you or the entity that you represent (collectively, “You” or “Your”), and governs Your use of the Pathways “Way” App (the “App”) on any mobile platform, including, but not limited to, iOS, Android, and Windows Phone (each, a “Mobile Solution”) by any mobile application store provider, including, but not limited to, Apple, Android, and Windows (each, an “App Store Provider”).
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE APP, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE FOREGOING, PATHWAYS DOES NOT AUTHORIZE YOU TO INSTALL OR USE THE APP.
Parties. This EULA is between You and Pathways only, and not any App Store Provider. Pathways, and not any App Store Provider, is solely responsible for the App and the content thereof. Notwithstanding the foregoing, You acknowledge that any App Store Provider has the right to enforce this EULA against You as a third party beneficiary.
Limited License. Subject to the terms and conditions of this EULA, Pathways hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App for lawful purposes solely in connection with Your account on the Registry, and only on a Mobile Solution, as permitted by the respective App Store Provider’s Terms of Service. You may use the App solely for Your internal, personal use.
License Restrictions. Except as expressly set forth in this EULA, You shall not, directly or indirectly, in whole or in part: (i) copy the App; (ii) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App; (iii) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App; (iv) modify the App or create derivative works based upon the App, in whole or in part; (v) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; (vi) use the App in any unlawful manner or for any unlawful purpose; (vii) remove or destroy any copyright notices or other proprietary marking on the App; or (viii) do anything adversely affecting Pathway’s right, title or interest in or to the App. You acknowledge that the source code underlying the App is Pathway’s Confidential and Proprietary information. Without limiting the generality of the foregoing, You shall not use the App to enable, support or otherwise aid the development of technology competitive with the App or any software embedded therein.
Proprietary Rights. You acknowledge and agree that the App is being and will be developed by and on behalf of Pathways at great expense to Pathways, that the App and all use shall be considered Confidential Information for purposes of Section 6, and that Pathways has and will have exclusive proprietary and other rights in the App and App Materials, including without limitation any and all worldwide patent, copyright, trademark, trade secret and other intellectual property rights, however and wherever arising (collectively, the “Proprietary Rights”). You acknowledge and agree that: (i) no title or ownership of the App or App Materials is transferred to You by this EULA; (ii) the App, App Materials and all Proprietary Rights therein are and shall remain the exclusive property of Pathways; and (iii) except for the license expressly granted by this EULA, You shall not have any right or interest in the App or App Materials.
Ownership. You shall not make any claim or representation of ownership, or act as the owner, of any of the App or App Materials or permit or facilitate the performance of any act that is inconsistent with or in violation of this EULA. You shall reproduce and include all proprietary, confidentiality, trade secret and other notices on any copies of the App and App Materials and on any portion thereof, and shall not remove, alter, cover or obscure any such notice, nor permit any of the same. Pathways shall be free to use and disclose, and to authorize others to use and disclose, without any obligation to You or any third party, any contributions, suggestions, modifications, derivative works, additions or the like that are made in whole or in part by You hereunder to, of, or with respect to, any of the App or App Materials. Such contributions, suggestions, modifications, derivative works, addition shall be owned exclusively by Pathways.
Confidential Information. Both during and after the term of this EULA, You shall keep strictly confidential, and not disclose or use other than as expressly permitted by this EULA, any non-public information of Pathways or information provided by Pathways, including without limitation the App or App Materials themselves (collectively, “Confidential Information”). As part of Your use of the App, You may become privy to certain Confidential Information regarding the App. This Confidential Information shall be held in strict confidence and shall not be disseminated or disclosed to any third party without the express written consent of Pathways. Disclosure of this Confidential Information without the express written consent of Pathways shall result in immediate termination of this EULA ending Your participation in use of the App and Pathways shall pursue all remedies available under Section 24 below.
Responsibilities of You. During the term of this EULA, You shall, at no charge to Pathways: (i) provide a supportive environment that allows for the free exchange of comments and information between You and Pathways; (ii) assist Pathways in recreating and defining App and App Materials problems; (iii) document problems, comments and suggestions on the forms prescribed by Pathways; and (iv) install and use with the App and App Materials all versions, updates, enhancements, modifications and additions that Pathways provides to You as part of the App and App Materials.
Reporting Methods. During the term of this EULA, You shall from time to time report to Pathways with respect to the conduct and outcome of Your use of the App, as may be agreed to by You and Pathways. The foregoing may include, but is not limited to: (a) written reports, based on a form and format agreed to by You and Pathways; (b) interviews, to be conducted by telephone, email or in person, and designed to gather information regarding the App; and (c) such other reasonable methods as Pathways may prescribe.
Term. The term of this EULA and the license granted herein continues until this EULA is terminated as set forth herein. Unless you have paid to access this App or any functionality in this App, Pathways may terminate this EULA and the licenses granted hereunder for any or no reason. You may terminate this EULA at any time by discontinuing use of the App. This EULA terminates automatically if You fail to comply with any of the terms of this EULA. Upon any termination of this EULA, You must cease use of the App and destroy all copies of the App.
Pricing. For consideration in Your using of the App and your adherence to the terms and conditions herein, including, but not limited to, Section 2, You are entitled to special pricing for Your use of this App. Such pricing will be as follows: a 7-day free trial and then the price o $6.99/month or $49.99. Any refunds for unsatisfactory or incomplete service(s) will be provided on a case by case basis, with sole and final determination made by Pathways.
No Commercial Release. The parties acknowledge and agree that this EULA does not constitute and is not intended to be a license of any commercial release of any Pathways software or any invention developed during use of the App.
Ownership. Title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the App, and any copies thereof, is and will at all times remain the property of Pathways. Pathways retains all rights, title and interest in and to the App that are not specifically granted to You hereunder.
No Guarantee. You acknowledge that Pathways does not endorse, represent or guarantee the truthfulness, accuracy, completeness or reliability of any of the data available on or through the App. Any health or diet related decisions You make based on Your use of the App are solely Yours. Pathway shall not incur any liability based on such decisions. Your use of or reliance on any such data is at Your own risk.
Disclaimers. YOU UNDERSTAND THAT THE APP, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS. THE APP, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE APP AND ALL DATA MADE AVAILABLE THEREON ARE PROVIDED “AS IS.” PATHWAYS MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PATHWAYS MAKES NO WARRANTY THAT THE APP OR ANY DATA MADE AVAILABLE THEREON WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE APP OR ANY DATA AVAILABLE THEREON WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE AND UNDERSTAND THAT: (i) THE APP PRODUCT AND APP MATERIALS ARE CONSTANTLY IN DEVELOPMENT; (ii) THE OPERATION THEREOF WILL NOT BE UNINTERRUPTED OR ERROR-FREE; AND (iii) THAT ANY RESEARCH OR DEVELOPMENT THAT YOU PERFORM REGARDING THE APP OR ANY PRODUCT ASSOCIATED WITH THE APP IS DONE ENTIRELY AT YOUR OWN RISK. SPECIFICALLY, THE APP MAY CONTAIN FEATURES, FUNCTIONALITY OR MODULES THAT WILL NOT BE INCLUDED IN FUTURE VERSIONS OF THE APP, OR THOSE THAT WILL BE MARKETED SEPARATELY FOR ADDITIONAL FEES. Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to You.
Transmissions. The App is designed to communicate with You via the Internet and/or Wi-Fi and mobile phone networks, and You are authorized to use the App with such technologies. You acknowledge that transmitting data over such networks or similar technologies is not 100% secure or free from risk of compromise.
Technical Support and Updates. Pathways may, but is not obligated to, provide maintenance or other technical support for the App. To the extent that any technical support is required by applicable law, Pathways, and not any App Store Provider, shall be obligated to furnish any such support. Pathways may make changes to the App at any time without notice, including without limitation by disabling certain features or functionalities in the App. Nothing in this EULA obligates Pathways to support or provide You with any updates or error corrections to the App.
Third-Party Claims. Pathways shall not be obligated to indemnify, defend or hold You harmless with respect to any third-party claims arising out or relating to the App or any data available thereon, including without limitation any claims for intellectual property infringement. To the extent Pathways is required by applicable law to provide such indemnification, Pathways, not any App Store Provider, shall be solely responsible for the investigation, defense, settlement and discharge of any such claim. Nothing in this EULA shall be deemed an admission that any such claims may arise.
Product Claims. Pathways, and not any App Store Provider, is responsible for addressing any of the following claims by You relating to the App: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this EULA shall be deemed an admission that You may have any such claims.
No Provision of Medical Care. All data provided through the App is provided for informational purposes only. The data provided through the App is not intended to be, and is not, professional medical advice or a substitute for such advice, or for diagnosis, treatment, cure, or prevention of any health conditions, and you should not rely on the data as such.
No Medical Nutrition Therapy Provided. You agree that no service provided by Pathways or one of Pathways’ Dietitians/“Pros” shall be of the nature constituting Medical Nutrition Therapy (MNT). The nature of services obtained by a Dietitian/“Pro” through the App is of consumer nature, not clinical nature. The App and Pathways do not accept any form of Health Insurance or Government reimbursement for the Services described in Section 10, above.
Limitation of Liability. IN NO EVENT WILL PATHWAYS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF THE CLAIM WAS REASONABLY FORESEEABLE OR IF PATHWAYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this EULA would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You.
Compliance with Law. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You may not export, re-export, import or transfer the App or any data available thereon in violation of any applicable export laws or regulations, and You may not assist or facilitate others in doing any of the foregoing. You acknowledge that it is Your responsibility to comply with any and all applicable export and import laws.
Governing Law; Venue. This EULA shall be interpreted in accordance with the laws of the state of California without reference to its conflict of law provisions. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Equitable Remedies. You hereby agree that Pathways would be irreparably damaged if the terms of this EULA were not specifically enforced, and therefore You agree that Pathways shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this EULA, in addition to such other remedies as Pathways may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this EULA, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
Miscellaneous. If any provision of this EULA is held to be unenforceable, then such provision shall be reformed to the extent necessary to make it enforceable so as to affect the intent of the parties and the remainder of this EULA shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without Pathways’ prior written consent, and any such attempt is void. This EULA is binding upon and is for the benefit of the respective successors and assigns of the parties hereto. The parties acknowledge and agree that a material breach of this EULA adversely affecting Pathways’ proprietary rights would cause irreparable harm to Pathways for which a remedy at law would be inadequate and that Pathways shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law. This EULA is the complete agreement between Pathways and You concerning the App and the App Materials and supersedes any and all prior agreements and representations between Pathways and You related to the same subject matter.
Contact. If You have any questions regarding the App or this EULA, please contact Pathways at email@example.com.