CLICK-WRAP LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY: This Click-Wrap License Agreement (this "Agreement") is a legal contract between you ("You" and "Your") and Poliquin Performance Center 2, LLC, a Rhode Island limited liability company ("Poliquin"), which governs Your access to and use of the Poliquin website (the "Site"), data accessible on the Site (the "Data") and all related software (the "Software," and collectively with the Site and the Data and any documents or software licensed by Poliquin and used in the Site and the Data, the "Technology"). BY CLICKING THE "ACCEPT" BUTTON BELOW, OR BY USING THE TECHNOLOGY OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE TECHNOLOGY OR SERVICES.

  1. LICENSE. Poliquin hereby grants You a limited, non-sub-licensable, nontransferable, non-exclusive license to access and use the Technology during the Term either (i) for Your personal use only (as a "Subscriber") or (ii) as coach or trainer to create and distribute training programs to Subscribers or other end-users. You certify that You are legally permitted to use the Technology and represent to Poliquin that You have all necessary power and authority to enter into this Agreement and to perform Your obligations hereunder. This Agreement does not give You any rights not expressly granted herein.
  2. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, You shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, reproduce, adapt, translate, create derivative works of, or distribute any of the Technology; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code, structure, ideas, algorithms, file formats, programming, interoperability interfaces, or sequence and organization of the Technology (to the extent such restrictions are allowable under applicable law); (iii) rent, lease, loan, sell or use the Technology for timesharing purposes; (iv) use any device, spider, robot, automatic software or device or manual process to hinder or impede or attempt to obstruct or hinder the proper working of the Technology or to monitor use or design of the Technology; (v) use any network monitoring or discovery software or device to determine Technology architecture or extract information or statistics about usage or user identities; (vi) copy, download, scrape, store, publish, transmit, retransmit, transfer, distribute, disseminate, broadcast, circulate, sell, resell or otherwise use the Data or any portion of the Data, in any form or by any means, including but not limited to sale, license or distribution of Data to third parties or use of Data as a component of or as a basis for any material offered for sale, license or distribution, except (a) as expressly permitted by this Agreement, (b) with the written permission of Poliquin, or (c) if otherwise allowed under the fair use provision of the Copyright Act (17 U.S.C.A. 107); or (vii) take any action that, in the sole discretion of Poliquin, imposes an unreasonable or disproportionately large load on the Technology. The Data shall not be stored or used by You in an archival database or other searchable database except as expressly permitted by this Agreement.
  3. VERSIONS. Notwithstanding anything herein to the contrary, the terms of this Agreement apply to Your use of all versions of the Technology. You agree and acknowledge that (i) the Technology is provided "AS IS" without warranties of any type other than those expressly provided in this Agreement; (ii) any media or Data created with the Technology may not be compatible with future releases of the Technology; and (iii) additional software or hardware may be required to continue to use future releases of the Technology. The Technology consists of various databases, services and functions which may change or be restricted from time to time at the sole option and discretion of Poliquin.
  4. REGISTRATION. As a condition to using the Technology, You shall be required to register an account with Poliquin and select a User ID. You shall provide Poliquin with accurate, complete, and updated registration information via the software application. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of the license granted hereunder. You may not select or use a User ID which is (i) the name of another person or entity with the intent to impersonate that person or entity or (ii) a name subject to any rights of a person other than You without appropriate authorization. Poliquin reserves the right to refuse registration of, modify or cancel a User ID in its sole discretion. You shall be solely responsible for the activity that occurs on Your account, and must keep Your account password secure. You are responsible for maintaining user information within the Technology. You are solely responsible for maintaining security of User IDs and for all access to and use of the Technology by Your User ID, whether or not You have knowledge of or authorize such access and use. You must notify Poliquin immediately of any breach of security or unauthorized use of Your User ID. Although Poliquin will not be liable for Your losses caused by any such unauthorized use, You may be liable for the losses of Poliquin or others due to such unauthorized use.
  5. SECURITY; PRIVACY. You agree not to (i) use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers" that accesses the Technology in a manner that sends more request messages to the Poliquin servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser and (ii) collect, harvest or distribute any personally identifiable information, including User IDs, from the Technology, nor to use the Technology for any solicitation purposes unrelated to Your use as a Subscriber or Trainer. The Poliquin Privacy Policy is posted on the Site, and You acknowledge the acceptance of the Privacy Policy in agreeing to the terms of this Agreement.
  6. INTELLECTUAL PROPERTY; RIGHTS IN THE DATA; IDEAS AND CONCEPTS. Title, ownership rights, and intellectual property rights in and to the Technology, including but not limited to, the text, software, scripts, graphics, names, photos, sounds, music, videos, interactive features and the like in the Technology, as well as their selection and arrangement, and including without limitation the trademarks, service marks and logos contained therein, and any copies or portions thereof (collectively, the "Assets"), shall remain in Poliquin. The Assets are protected by copyright, trademark, patent, trade secret and/or other intellectual property laws. Any unauthorized use of the Assets or removal or modification of any copyright or proprietary rights notice of Poliquin, in whole 3 or in part, violates the law and the terms of this Agreement. As a condition to Your access and use of the Technology, You represent, warrant and covenant that You will not use the Technology: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party or (ii) to violate any applicable law, statute, ordinance or regulation. Except for the license granted in this Agreement, all right, title and interest in the Data, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Poliquin. Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, improvements, enhancements, materials and the like that You provide to Poliquin relating to the Technology shall become the exclusive property of Poliquin and may be used for its business purposes in its sole discretion without any payment, accounting, remuneration or attribution to You.
  7. TERM AND TERMINATION; EARLY TERMINATION. This Agreement commences on the date You click agree below and it shall continue in full force and effect for a period of either (i) one year or (ii) one month, as You may select when registering Your account, and shall automatically renew for successive one year or one month periods, as applicable, unless sooner terminated as hereinafter provided (the "Term"). Either You or Poliquin may terminate this Agreement (i) upon 30 days written notice to the other after the expiration of the initial period of the Term or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors undismissed for a period of 60 days. In no event shall any termination of this Agreement relieve You of the obligation to pay Charges due to Poliquin.
  8. CHARGES; PAYMENT INFORMATION. Charges payable for the license and rights granted hereby (the "Charges") shall be deemed fully earned for the entire applicable period of the Term, notwithstanding that invoices for Charges may provide for payment to be made in periodic installments. The Charges are exclusive of sales, use, value added tax or equivalent, ad valorem, personal property and other taxes, and all telecommunications or other connectivity charges incurred by You through the use of the Technology, which are in all instances Your responsibility. Poliquin reserves the right, in its sole discretion, to increase the Charges at any time during the Term. You will pay all Poliquin invoices in full within 30 days from the date of invoice. If full payment is not timely made, Poliquin may charge You up to the maximum legal interest on the unpaid installment. All of the payment information provided by You must be current, complete and accurate. You are solely responsible for updating such payment information as necessary. You herby authorize Poliquin, from time to time to take steps to determine if Your payment information, including but not limited to debit card or credit card numbers, is valid. Poliquin reserves the right to terminate this Agreement immediately in the event any such payment information is found to be inaccurate, incomplete, not current and/or fraudulent at any time. Poliquin shall not be responsible for any overdraft charge or other fees that may be incurred by Poliquin's use of Your debit card or credit card for payment hereunder
  9. AUTOMATIC COMMUNICATIONS; POOLING AND USE OF DATA; UPGRADES. You acknowledge that the Technology performs automatic communications with Poliquin 4 servers over the internet periodically and by default to transmit bug fixes, patches, upgrades and enhancements. You hereby consent to such communications. You agree that Your User ID, keystroke data and other data transmitted to Poliquin servers through the Technology (collectively, "Your Data") may be collected and pooled by Poliquin for analysis, comparison, bench marking, product development and improvement as part of Poliquin's ongoing effort to deliver value-added services and improvements to the Technology. None of Your Data which is "personally identifiable" shall be shared or otherwise disclosed by Poliquin, and shall be stored and maintained in strict compliance with all applicable privacy laws. To the extent that Poliquin's use of Your Data would require a license, You hereby automatically and forever grant Poliquin an unlimited, sub-licensable, transferable license thereto without compensation therefore.
  10. THIRD PARTY SOFTWARE, SERVICES AND WEBSITES. Features in the Technology may take advantage of third party software which requires notices and/or additional terms and conditions, and which may change or be restricted from time to time. Poliquin is not responsible for any third party software. Services provided through a third party under contract with Poliquin are governed by the third party's privacy policy and terms and conditions. The Site may contain links to third party websites that are not owned or controlled by Poliquin. Poliquin has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Poliquin will not and cannot censor or edit the content of any third-party website. You agree that bug fixes, patches, upgrades and enhancements may be rolled out by Poliquin from time to time in its discretion, without notice to or consent by You.
  11. INDEMNITY. You shall indemnify, defend and hold harmless Poliquin, its affiliates and subsidiaries, and each of their officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, penalties, fines and expenses (including but not limited to attorneys' fees) arising from Your (i) use of the Technology, (ii) failure to comply with any term of this Agreement or with any applicable provision of law and (iii) violation of any third party right, including, without limitation, any copyright, property, or privacy right or any applicable laws and regulations. Poliquin shall indemnify, defend and hold You harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, penalties, fines and expenses (including but not limited to attorneys' fees) arising from Poliquin's violation of any third party right, including, without limitation, any copyright, property, or privacy right. The foregoing defense and indemnification obligations will survive the expiration or termination of this Agreement.
  12. WARRANTY DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, POLIQUIN PROVIDES THE TECHNOLOGY "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
  13. LIMITATION OF LIABILITY. YOU AGREE THAT POLIQUIN SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY USE YOU MAKE OF THE TECHNOLOGY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL POLIQUIN, ITS MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS OR OMISSIONS IN ANY OF THE DATA, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE TECHNOLOGY, (III) UNAUTHORIZED ACCESS TO OR USE OF SECURE SERVERS OF POLIQUIN AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, (VI) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE TECHNOLOGY AND/OR (VII) WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR DAMAGES RESULTING FROM YOUR USE OF THE TECHNOLOGY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF POLIQUIN SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TECHNOLOGY BY YOU MUST COMMENCE WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. THE AGGREGATE LIABILITY OF POLIQUIN UNDER ANY PROVISION OF THIS AGREEMENT, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL NOT EXCEED THE CHARGES ACTUALLY PAID BY YOU FOR THE THENCURRENT TERM.
  14. FORCE MAJEURE. Performance under this Agreement is subject to interruption and delay due to causes beyond the reasonable control of the parties, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like. If Poliquin's ability to perform under this Agreement is impaired by circumstances beyond its reasonable control, Poliquin may, in its sole discretion, suspend the performance of its obligations hereunder until any disruption resulting from the force majeure event has been resolved and the parties agree to negotiate an equitable adjustment for any prepaid fees hereunder.
  15. NOTICES. Poliquin may provide You with any notice required hereunder via email, regular mail and/or postings on the Site.
  16. EXPORT CONTROLS. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury 6 Office of Foreign Assets Control, or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of any of the Technology in violation of any such restrictions, laws or regulations. By using the Technology, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.
  17. ASSIGNMENT. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving You) without the prior written consent of Poliquin, which consent may be withheld in the sole discretion of Poliquin. Any action or conduct in violation of the foregoing shall be void and without effect. Poliquin expressly reserves the right to freely assign this Agreement and to delegate any of its obligations hereunder.
  18. AMENDMENT. This Agreement may be amended by a writing signed by both parties. Notwithstanding the foregoing, Poliquin may amend this Agreement at any time and from time to time by providing a copy of such amendment to You not less than 60 days prior to its intended effective date. Use of the Technology by You following such notification period shall constitute Your acceptance of the terms of this Agreement as so amended.
  19. DISCLAIMERS RELATING TO FITNESS PROGRAMS. You hereby understand and agree as follows:
    • Health, fitness and nutritional information offered through the Technology is designed for educational purposes only. You shall not rely on this information as a substitute for, nor does it replace, professional medical advice, diagnosis, or treatment. If You have any concerns or questions about Your health, You shall consult with a physician or other health care professional.
    • You shall not disregard, avoid or delay obtaining medical or health related advice from Your health care professional because of information or anything else You may have obtained through the Technology.
    • THE USE OF ANY INFORMATION PROVIDED THROUGH THE TECHNOLOGY IS SOLELY AT YOUR OWN RISK.
    • Development in medical research may impact the health, fitness and nutritional advice that is available through the Technology. No assurance can be given that the advice available through the Technology will always include the most recent findings or developments with respect to the particular material.
    • If You are in the United States and think You are having a medical or health emergency, You shall call Your health care professional or dial 911 immediately.
    • No information available through the Technology is intended to be, and must not be taken to be, the practice of medicine or counseling care.
    • Your access or use of the Technology does not create in any way a physician/patient, confidential, or privileged relationship, or any other relationship that would give rise to any duties on our part or the part of Poliquin.
    • Unless otherwise stated therein, Poliquin does not recommend or endorse any specific tests, physicians, clinics, procedures, opinions, products or other information that may appear on the Technology.
  20. MISCELLANEOUS
    • This Agreement, together with the Privacy Policy and any invoice relating hereto, constitutes the complete agreement concerning the matters hereof and supersedes all prior agreements and representations between the parties hereto.
    • If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remainder of the Agreement shall remain enforceable as written.
    • The failure of either party to act with respect to a breach of this Agreement does not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches.
    • This Agreement shall be governed by and construed under Rhode Island law without regard to such State's conflicts of law principles. You agree that: (i) the Site shall be deemed solely based in Rhode Island; and (ii) the Site shall be deemed a passive website that does not give rise to personal jurisdiction over Poliquin, either specific or general, in jurisdictions other than Rhode Island. Each party hereby submits to the exclusive jurisdiction and venue of the state and federal courts sitting in Providence, Rhode Island in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding shall be heard and determined in any such court.
    • This Agreement is void where prohibited by law and the right to use the Technology in such jurisdictions is revoked.
    • The Site is controlled and offered by Poliquin from its facilities in the United States of America. Poliquin makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are responsible for compliance with local laws.
    • In the event any action is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs of enforcement including, without limitation, reasonable attorneys' fees and court costs.
    • Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number (singular or plural), and any other gender (masculine, feminine or neuter), as the context may require.
    • The titles and headings of the various sections and sections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
    • You hereby acknowledge that You have read and understand this Agreement and You agree to be bound by its terms.