This Agreement governs the use of the Ferrigno FIT website, health and fitness programs, consultations and nutritional services (“Services”) offered at FERRIGNOFIT.COM and through any mobile application, video streaming players and/or Internet connection services (collectively, the “Site”). This Agreement is an electronic Contract that sets out the legally binding terms of the use of the Site and/or Services, and use of the Site and/or Services constitutes assent to this Agreement, to include all terms, conditions and notices contained or referenced herein. Additionally, by using the Site and/or Services, User consents to receive this Agreement in electronic form.
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Ferrigno FIT and User agree as follows:
1. Definitions and Interpretations.
1.1. Certain terms used herein shall have the meaning ascribed to such terms as set forth in Schedule 1.
1.2. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
1.3. All the defined terms as set forth in Schedule 1, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
2. Ferrigno FIT is an Informational Platform and Online Service Provider.
2.1. Ferrigno FIT is an informational website and both free and fee-based service venue provided to Users throughout the World on a public and private basis. The Site serves to educate Users on health and fitness news and products, and to provide assistance and consultation in the areas of personal training, physical fitness and nutritional plans.
2.2. User hereby agrees to hold Ferrigno FIT and all its Representatives harmless for any liability that arises from the instruction, advice, or services delivered through the use of the Site and/or Services.
3. Grant of License.
Subject to the terms and conditions of this Agreement, Ferrigno FIT hereby grants User a personal, limited, revocable, non-transferable, non-assignable, non-exclusive license to: (a) execute the executable code of Website Software only through the Domain Name only to partake in its Services; provided, however, that access to and execution of the executable code of the Website Software may, in Ferrigno FIT’s sole and absolute discretion, be denied at: (i) certain times reasonably designated by Ferrigno FIT for updates, back-ups and/or maintenance of the Ferrigno FIT Website and/or Website Software and/or (ii) other times unexpected and/or outside the reasonable control of Ferrigno FIT, including, without limitation, network outages, technical errors, and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and/or execution of the Website Software; (b) view, print and copy the Website Content only for personal, noncommercial purposes; provided, however, that nothing in this Agreement shall grant a license to Distribute such Website Content to any third Person; and (c) create a hyperlink to the Ferrigno FIT Website.
4. User Covenants/Warranties.
4.1.The Site and/or Services are only available to Persons who are able to form legally binding Contracts under applicable law. Without limiting the foregoing, the Site and/or Services are not available to minors under the age of eighteen (18).
4.2.By using this Site and/or Services, User hereby represents and warrants the right, authority and capacity to enter into this Agreement.
4.3.By using the Site and/or Services, User hereby authorizes Ferrigno FIT to verify all User representations and warranties, and Ferrigno FIT reserves the right, but not the obligation, to verify such representations and warranties, which may include but are not limited to, public record searches, reference checks, reviews and testimonials. Ferrigno FIT reserves the right, but not the obligation, to terminate the use of the Site and/or Services by User, should it determine, in its sole discretion, User has misrepresented or misstated any representation or warranty in any way.
4.4.User shall not view, print, copy or distribute Website Content for any purpose outside the limited scope of the Non-Commercial Purposes without express written consent of Ferrigno FIT, such consent granted in Ferrigno FIT’s sole and absolute discretion.
4.5.User shall not charge any Person any amount to view, print, copy, or distribute the Website Content.
4.6.User shall not utilize framing technology to enclose any Website Content without express written consent of Ferrigno FIT, such consent granted in Ferrigno FIT’s sole and absolute discretion.
4.7.User shall not use any meta tags or other Content utilizing Ferrigno FIT Intellectual Property, without the express written consent of Ferrigno FIT, such consent granted in Ferrigno FIT’s sole and absolute discretion.
4.8.User shall not use any embodiment of Licensed Intellectual Property in any Media whatsoever, unless such embodiment bears and displays the copyright, service mark and trademark notices as designated (from time to time) by Ferrigno FIT.
4.9.User shall never Encumber, nor authorize nor enable any Person to Encumber, the Ferrigno FIT Intellectual Property or any portion thereof.
4.10. User’s creation of or use of any hyperlink to the Site shall not portray Ferrigno FIT, Ferrigno FIT’s Representatives or affiliates, or Ferrigno FIT’s products or services in a false, derogatory, misleading, or otherwise offensive manner.
5. Information Provided By User.
5.1. User is responsible for providing accurate, current, and complete Content when using or registering to use the Site and/or Services. Ferrigno FIT is not responsible for any Claims or Losses relating to any inaccurate, untimely or incomplete Content provided by any User of the Site and/or Services.
5.2. User is solely responsible for any Content published or displayed on the Site. User shall not publish or display on the Site, nor transmit to any other User, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any other material that would infringe or violate the rights of another. User shall not provide inaccurate, misleading or false Content to Ferrigno FIT or to any other User of the Site and/or Services.
5.3. User assents that Ferrigno FIT, in its sole discretion, may review and delete any Content, in whole or in part, upon determining that such Content violates this Agreement.
5.4. By publishing or displaying Content on the Site, User herein grants, and represents and warrants the right to grant, to Ferrigno FIT and its Representatives, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, display, perform, reproduce, adapt, modify, distribute and sublicense such Content. User further represents and warrants that displaying and publishing such Content does not infringe or violate the rights of any third Person.
5.5. Users are the sole authors of Content displayed or published on the Site and/or through the Services and are therefore solely responsible for such Content. Ferrigno FIT does not guarantee, adopt, endorse, nor accept responsibility for the accuracy, completeness or usefulness of such Content. Under no circumstance will Ferrigno FIT or its Representatives be liable for any Claims or Losses resulting from User’s reliance on such Content, or any Content displayed or published with regard to any User.
5.6. User assents that by displaying or publishing any information that can be used on its own or in connection with other information to identify, distinguish, contact or locate an individual (“Individually Identifiable Information”) on the Site and/or through the Services, that such Individually Identifiable Information shall be public and capable of being viewed by other users. User hereby assents that Ferrigno FIT shall not be held liable for any and all Claims or Losses that occur from User displaying or publishing such Individually Identifiable Information.
6. Third Person Links
6.1. The Site may contain hyperlinks to other Web sites Controlled by third Persons. Ferrigno FIT is not responsible for the Content of any linked site or any link contained in a linked site. Ferrigno FIT provides links to User only as a convenience, and the inclusion of any link does not imply endorsement by Ferrigno FIT of the external site.
7. Copyright Infringement Claim
7.1.User shall direct any copyright infringement claims to Ferrigno FIT’s designated agent, consistent with section 512 of the Digital Millennium Copyright Act (17 U.S.C. Section 512). The designated agent to receive notification of claimed infringement, as filed with the Public Information Office of the Copyright Office, is available in the following manner:
- Douglas Burda
P.O. Box 1532
La Jolla, California 92038
Telephone: (248) 217-0002
7.2.All copyright infringement claims must be in writing and shall include the following information:
7.2.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7.2.2. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single Web site are covered by a single notification, a representative list of such works at that Web site.
7.2.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Ferrigno FIT to locate the material.
7.2.4. Information reasonably sufficient to permit Ferrigno FIT to contact the complaining party, including address, telephone number, and e-mail address.
7.2.5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
7.2.6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
8. Retained Rights.
8.1.Ferrigno FIT may, in Ferrigno FIT’s sole discretion, modify any and all of the Website Content without notice at any time.
8.2.All licenses not expressly granted to User pursuant to this Agreement are reserved by Ferrigno FIT. User shall not acquire any right, title or interest in or to the Licensed Intellectual Property. User shall not contest the right, title or interest of Ferrigno FIT in and to the Licensed Intellectual Property or the validity of the license granted by Ferrigno FIT to User pursuant to this Agreement. User shall not at any time apply for any registration of any Intellectual Property which would affect the right, title or interest of Ferrigno FIT in and to the Licensed Intellectual Property nor shall User file any document with any Governmental Authority or take any action which would impact any such right, title or interest in and to the Licensed Intellectual Property or assist any other Person with such action or document.
8.3.All right, title and interest in and to the Licensed Intellectual Property, including, without limitation, the Intellectual Property in the Licensed Intellectual Property, exclusively vests in and shall always vest with Ferrigno FIT or its respective designees.
8.4.User shall promptly notify Ferrigno FIT of any unauthorized Exploitation of Ferrigno FIT’s Intellectual Property by third Persons that come to User’s attention. Ferrigno FIT shall have the right, exercisable at Ferrigno FIT’s sole discretion, to institute and control all Claims against third Persons relating to Ferrigno FIT’s Intellectual Property.
8.5.To the extent User is deemed an owner of any Intellectual Property in the Licensed Intellectual Property or any other Intellectual Property which Ferrigno FIT has Developed or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any and all such Intellectual Property to Ferrigno FIT and shall execute and undertake all documents and all actions necessary to effect the clarification of ownership of all such Intellectual Property in and to Ferrigno FIT and to permit Ferrigno FIT to apply for registration of such Intellectual Property and/or issuances of patents, as well as maintain any registrations or issuances granted.
8.6.Ferrigno FIT retains the right to preclude User’s use of any portion of the Licensed Intellectual Property that is determined to infringe a third Person’s Intellectual Property or that is the subject of a prohibition of use by any Governmental Authority (a “Prohibition Event”). If a Prohibition Event occurs and such preclusion follows, then Ferrigno FIT shall use reasonable efforts to provide a substitute to the affected Licensed Intellectual Property for User’s use consistent with the provisions of this Agreement.
8.7.Subject to Section 13, Ferrigno FIT retains the right to revoke the license granted in this Agreement for any or no reason.
Ferrigno FIT will use its reasonable efforts to monitor User profiles, actions, comments, and general use of the Site and will, at Ferrigno FIT’s sole discretion, suspend or terminate use of any User not adhering to the policies set forth in this Agreement. By using the Site and/or Services, User agrees to take reasonable precautions in all interactions with other Users of this Site and/or Services, whether online or offline. User further agrees to report any alleged improprieties of any User therein to Ferrigno FIT immediately by notifying Ferrigno FIT of the same via electronic correspondence.
11. Disclaimer of all Warranties and Representations.
11.1. THE CONTENT DISPLAYED AND PUBLISHED IN THE SITE IS PROVIDED “AS IS”, “AS AVAILABLE”. FERRIGNO FIT DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE ACCRUACY, ADEQUACY OR COMPLETENESS OF THE CONTENT AND EXPRESSLY DISCLAIMS LIABILITIES FOR ANY ERRORS OR OMISSIONS IN THE CONTENT. NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE AND FREEDOM FROM COMPUTER VIRUS IS GIVEN IN CONJUNCTION WITH THE CONTENT (WHETHER OR NOT FERRIGNO FIT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
11.2. FERRIGNO FIT PROVIDES THE SITE AND/OR SERVICES ON AN “AS IS” BASIS AND DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITE AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE IN CONJUNCTION WITH THIS SITE AND/OR SERVICES (WHETHER OR NOT FERRIGNO FIT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
11.3. THE LICENSED INTELLECTUAL PROPERTY IS PROVIDED “AS IS.” FERRIGNO FIT DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED INTELLECTUAL PROPERTY OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so this exclusion may not apply to User) OR CONDITIONS OF TITLE, NON‑INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT FERRIGNO FIT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
12.1. FERRIGNO FIT SHALL NOT BE HELD LIABLE TO ANY PARTY ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR ANY AMOUNT AND FERRIGNO FIT SHALL NOT BE LIABLE TO USER (NOR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO THE USER’S RIGHT, TITLE AND INTEREST) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. In addition to the preceding paragraph and other provisions of this Agreement, any Content displayed or published on the Site and/or through its Services is for informational purposes only and shall not replace or substitute any professional financial, medical, legal, or other advice. Ferrigno FIT makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any User or third Person following any Content provided on the Site and/or through its Services. Users should consult with professionally trained or qualified specialists with regard to any medical concern.
13.1. In addition to any and all other remedies available to Ferrigno FIT pursuant to this Agreement, Ferrigno FIT shall have the right to immediately terminate use of the Site, Services, and/or this Agreement from any User, for any or no reason, with or without notice. Ferrigno FIT reserves the right, upon termination of the use of the Site, Services, and/or this Agreement, to notify any other users with whom the terminated User had correspondence with.
13.2. Upon termination of use of the Site, Services, and/or this Agreement, User shall immediately cease any further use of Licensed Intellectual Property.
Notwithstanding any other provision of this Agreement, User shall indemnify and hold Ferrigno FIT and its Representatives (the “Indemnified Parties”) harmless from and against any Losses incurred by any of the Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User, including, without limitation, the misstatement or misrepresentation of User Content, abuse of the Site and/or Services, or misuse of the Licensed Intellectual Property.
15. Prohibited Use.
15.1. The Site and/or Services may not be used by any Person to recruit, solicit or contact in any form, Users for employment or contracting for a business not affiliated with Ferrigno FIT without the express written permission from Ferrigno FIT, to be given in its sole discretion. Users shall not remove Content from the Site for any purpose other than that explicitly allowed by Ferrigno FIT, including, but not limited to use on a “mirrored”, competitive site. Should Ferrigno FIT find User in violation of the provisions of this paragraph or any terms stated herein, Ferrigno FIT reserves the right, at its sole discretion, to immediately terminate User from the Site and/or Services, and seek a court-ordered temporary restraining order and injunction (both preliminary and permanent) without any requirement to post bond and/or other appropriate order to specifically enforce those covenants, and assess any penalty fees associated with damages incurred by the removal of such Content.
15.2. The Site and/or Services, or any Content obtained through the Site and/or Services may not be used in order to intimidate, harass, abuse, harm, or for the use of contacting, advertising, soliciting, or selling to any User without their prior explicit consent. Ferrigno FIT reserves the right, at its sole discretion, to take any reasonable action to protect, deter or restrict any User from such activity.
16. COPPA Compliance.
17. Protected Health Information.
By using the Site and/or Services, Users hereby understands and acknowledges that User is responsible for any and all personal information submitted to the Site and/or its Services, to include any and all protected health information. Ferrigno FIT hereby disclaims liability for the receipt or use of any and all protected health information provided to or through the Site and/or Services by User. Ferrigno FIT shall not use or disclosure information collected, to include that which may be considered protected health information, except as permitted or required by law and has implemented appropriate safeguards to prevent the unauthorized use or disclosure of such information, whether in electronic or other form. Further, Ferrigno FIT shall report any use or disclosure of such information not provided for or permitted by law, of which it becomes aware, to the User or necessary entity.
This Agreement is personal to User, and User shall not assign or have assumed this Agreement to and by, respectively, third Persons.
19. General Provisions.
19.1. User acknowledges that User’s failure to cease further use of Licensed Intellectual Property upon termination of this Agreement or any violation by User of User’s covenants in this Agreement relating to Ferrigno FIT’s Intellectual Property would result in damage that is largely intangible, but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give Ferrigno FIT the right to a court-ordered temporary restraining order and injunction (both preliminary and permanent) without any requirement to post bond and/or other appropriate order to specifically enforce those covenants.
19.2. The provisions herein concerning Intellectual Property will be construed as independent of any other provision hereof and raising a defense to an obligation of the User in this Agreement related to Intellectual Property shall not impair the on‑going duty of User to perform in accordance with its own obligations pursuant to this Agreement.
19.3. User shall not use Ferrigno FIT’s name, service marks, trade dress or trademarks, except as designated in Section 3. User agrees that in utilizing the Licensed Intellectual Property, User will in no way represent that User has any right, title or interest in or to the Licensed Intellectual Property.
19.4. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
19.5. All terms which by their nature are intended to survive any termination of this Agreement, or any termination of User’s use of the Site, Content, Products or Subscriptions shall survive such termination.
19.6. This Agreement represents the entire understanding between Ferrigno FIT and User with respect to its Site, Services, Content and Licensed Intellectual Property. This Agreement may be changed, renewed, waived, discharged or terminated only by an instrument in writing submitted by Ferrigno FIT. Any future changes made by Ferrigno FIT to this Agreement shall be incorporated and binding upon User, so long as User subscribes to the Site and/or Services. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns and may be executed in one (1) or more counterparts. The Parties acknowledge that each of them has reviewed this Agreement and has had the opportunity to have this Agreement reviewed by their attorneys and that any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, including amendments, Schedules or exhibits.
19.7. Regardless of where User resides or may be domiciled, or where User’s browser is physically located, User’s Utilization of the Website shall be interpreted as if to have occurred solely within the State of California, Los Angeles County, and the Website shall be deemed to have been served from and the Service(s) performed solely and wholly within the State of California, Los Angeles County, as if User had physically traveled there to obtain the Service(s). This Agreement shall be governed by and construed in accordance with the laws of the State of California. User consents to the sole and exclusive jurisdiction of courts located in Los Angeles County, California as the most convenient and appropriate for the resolution of Claims relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement that cannot be resolved between the Parties.
20. Payment and Refund Policy.
20.1. The portion of the Site and/or Services provided on a fee-basis obligate all Users to pay for use of the Site and/or Services unless specifically noted otherwise. Users agree to pay Ferrigno FIT all charges at the price then in effect for any use of the Site and/or Services, either on a monthly or yearly basis, respectively. User authorizes Ferrigno FIT to charge their chosen payment provider for use of the Site and/or Services and User shall be held to any applicable terms and conditions of such chosen payment provider. Ferrigno FIT reserves the right to correct any errors or mistakes that it makes even in the event payment has already been requested or received.
20.2. Ferrigno FIT may from time to time offer Users a limited-time free trial subscription. A free trial subscription may provide Users limited access to features of the Site and/or Services. Should User continue subscription upon the end of the trial period (“Trial End Date”), the User will be charged the price then in effect for the Site and/or Services. Users with a free trial subscription must cancel their subscription prior to the Trial End Date to avoid being charged for the Site and/or Services.
20.3. A User’s subscription to the Site and/or Services will automatically extend for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional subscription rate, unless specifically noted otherwise. User should contact Ferrigno FIT to cancel subscription. Upon cancellation, User may use the subscription until the end of the then-current subscription term; a subscription will not renew after the then-current term expires.
20.4. Ferrigno FIT will not provide refunds or credits for account cancellation requests received after the account has been billed. Ferrigno FIT will not provide refunds for any donations to third Persons made while enrolling or using the Site and/or Services. Ferrigno FIT, in its sole discretion, may grant refunds or credits in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any error made by Ferrigno FIT.
21. Sales and Other Taxes.
Any and all Users who purchase services offered through the Site are also obligated to pay for any sales or other taxes that may be applicable to the services they purchase.
22.1. Nothing in this Agreement shall be construed as making either Party the partner, joint venture, agent, legal representative, employer, contractor or employee of the other.
22.2 Neither Party shall have, or hold itself out to any third Party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the Party to be bound. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the Parties hereto.
SCHEDULE 1 – DEFINITIONS
SCHEDULE 1 – DEFINITIONS
“Authorized Persons” shall mean those directors, officers and managers of User who must gain knowledge of the Confidential Information or confidential information, respectively, in order to use the Licensed Intellectual Property.
“Ferrigno FITT Intellectual Property” shall mean the Intellectual Property owned, held, used or licensed by Ferrigno FIT, LLC., including, without limitation, all Intellectual Property in and to the Licensed Intellectual Property.
“Ferrigno FIT Trade Secrets” shall mean Trade Secrets owned, held, used or licensed by Ferrigno FIT, LLC.
“Ferrigno FIT Website” shall mean website accessible through the domain name FERRIGNOFIT.COM.
“Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
“Confidential Information” shall mean all the Content relating to, used in or arising out of Ferrigno FIT’s business, finances or other operations and held by, owned, licensed, or otherwise possessed by Ferrigno FIT (whether held by, owned, licensed, possessed or otherwise existing in, on or about Ferrigno FIT’s offices, residence(s) or facilities and regardless of how such Content came into being, as well as regardless of who created, generated or gathered the Content), including, without limitation, all Content contained in, embodied in (in any Media whatsoever) or relating to Ferrigno FIT's ideas, creations, works of authorship, works of visual art, business documents, Contracts, licenses, business and non-business relationships, correspondence, operations, manuals, performance manuals, operating data, projections, bulletins, supplier and customer lists and data, sales data, cost data, profit data, strategic planning data, financial planning data, designs, logos, motifs, proposed trademarks or service marks, test results, product or service literature, product or service concepts, manufacturing or sales techniques, process data, specification data, know-how, show-how, Software, data bases, research and development information and data; provided, however, that “Confidential Information” shall not include information or data “generally publicly known”. The phrase in the previous sentence “generally publicly known” shall not be deemed to include the Content set forth in patents despite the fact that patents have been published by the federal government, unless such embodiment has otherwise been the subject of a publication for general public consumption (other than publication as a patent) or if that embodiment is otherwise utilized generally by Persons in the United States of America in the industry or market within which Ferrigno FIT competes. All provisions protecting "Confidential Information" in this Agreement shall be deemed to also protect “Ferrigno FIT Trade Secrets" as well, but references to "Ferrigno FIT Trade Secrets" shall not be deemed to automatically refer to "Confidential Information."
“Content” shall mean all material, information, documents, matter, text, Software, data, graphics, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing.
“Contract” shall mean all agreements, contracts, understandings, undertakings, obligations, and other documents or matters where there is or was an agreement to be bound.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any Person, or the power to veto major policy decisions of any such Person, whether through the ownership of voting securities, by Contract, or otherwise.
“Develop” shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person’s efforts in any manner whatsoever and through any means whether now known or hereafter developed.
“Effective Date” shall mean each and every date User effects the benefits of this Agreement.
"Encumber” shall mean to impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature.
“Exploit” shall mean to use, make, sell or otherwise exploit in any manner whatsoever (through any means now known or hereafter Developed).
“Governmental Authority” shall mean any federal, state, county, municipal or other sovereign entity or jurisdiction, as well as all subdivisions, agencies and authorities therein.
“Intellectual Property” shall mean all foreign, federal, state and common law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, Inventions (whether or not patentable), mask works, Software, proprietary data, customer lists, strategic plans, financial data, Trade Secrets, all other intangible assets of whatsoever nature and all applications for registration and/or issuance with respect to all the foregoing and whether or not any of the foregoing is registerable or patentable, including, without limitation, with respect to all of the foregoing: (i) all goodwill associated with any and all of the foregoing; (ii) all parents, continuations, continuations in part, divisionals, reissues and extensions; and (iii) all moral rights associated with any and all of the foregoing.
“Inventions” shall mean any idea, invention, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), and any work of authorship (whether or not copyright protection may be obtained for it).
“Licensed Intellectual Property” shall mean the Website Content.
“Losses” shall mean any and all damages, liabilities, costs, expenses, fees (including, without limitation, attorneys', accountants', investigators', witnesses' and professionals' fees), charges, expenditures, liabilities, damages and other losses of whatsoever nature.
“Media” shall mean print, document-based medium, television, facsimile, telex, telephony, radio, satellite, cable, wire, computer-based network, network, magnetic means, optical means, electronic means, Internet, intranet, Software, compact and laser disc, digital video displays, video cassettes, and multi-media and any other method (now known or hereafter Developed) for the publication, retention, conveyance, possession or holding of Content.
“Non-commercial Purposes” shall mean informational, personal and/or otherwise non-commercial purposes.
“Person” shall mean any natural person, corporation, limited liability company, limited partnership, partnership trust, association, organization or other entity of whatsoever nature.
“Representatives" shall mean all shareholders, directors, officers, employees, agents, representatives, attorneys, and accountants either holding equity in, retained by, employed by, commissioned by or otherwise Controlled by a subject Person.
“Schedule” shall mean an enumerated schedule all of which shall be deemed attached hereto and incorporated herein by way of the specific reference or references made in this Agreement.
“Section” shall be deemed a reference to an enumerated provision of this Agreement. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
“Software” shall mean source code, object code, executable code, or other program or code format whatsoever, whether now known or hereinafter developed.
“Termination Event” shall mean any or all of the events that trigger the last day this Agreement is in effect, either by way of termination or expiration.
“Trade Secrets" shall mean all methodologies (subject to same being the subject of an issued patent), pricing strategies, marketing approaches and other Confidential Information that Ferrigno FIT reasonably informs (whether orally or in writing) the User from time to time is a trade secret, as well as other Confidential Information reasonably the subject of trade secret protection under relevant and applicable state statutes (including, without limitation, the Uniform Trade Secrets Act as enacted and promulgated from time to time in California).
“Website Content” shall mean the Content accessible, displayed or otherwise conveyed through the Ferrigno FIT Website.