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Terms & Conditions

CLIENT SUBSCRIPTION AGREEMENT

This Client Subscription Agreement ("Agreement") is a legally binding contract between you and Retrofit Inc. ("Retrofit", "we", or "us" ) and governs your use of the Service (as defined below). Read the terms and conditions of this Agreement carefully before continuing. BY CHECKING THE "I AGREE" BOX FOR ACCOUNT SET UP, YOU CERTIFY THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND YOU INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE OF SECTIONS 3 AND 8, REGARDING YOUR ASSUMPTION OF RISK AND THE LIMITATION OF RETROFIT'S LIABILITY. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, DO NOT CLICK THE "I AGREE" BOX.

1. Definitions.

Capitalized terms used in this Agreement have the meaning ascribed to them in this Section.

"Acceptance Date" means the date you indicate your acceptance of this Agreement.

"Client Data" means the data about you that Retrofit gathers in the course of providing the Service, including your physical characteristics, eating habits and caloric intake, sleeping habits, changes in weight, and progress with respect to exercises and activities. "Client Data" also includes recordings of videoconferences or telephone conversations and any information that you post on the Retrofit-operated website or any Retrofit-affiliated electronic interface at any time before, during or after your receipt of Services.

"Confirmation Email" means any e-mails providing instruction on the Services, confirming your Plan selection, participation in the Service, and/or purchase of Services from Retrofit.

"Documentation" means, collectively, all client guides, protocols, Plan, Confirmation Email, and other reference materials generally furnished by Retrofit with respect to the Service, whether in printed or electronic format, as may be updated by Retrofit from time to time.

"Plan" means one or more packages of a defined set of benefits comprising the Service, which are offered to a Client in exchange for the Subscription Fee.

"Proprietary Information" means all non-public business or technical information or materials disclosed to you by Retrofit or any Wellness Professional, including the Documentation, any method of carrying out or delivering the Service, and any pricing or commercial terms related to the Service, including the price you have paid for the Plan and Service.

"Retrofit Gear" means, collectively, the scale, wireless activity tracker, heart rate monitor, and any other equipment provided by Retrofit to you as part of the Plan and Service.

"Service" means Retrofit's internet-based weight loss and weight management program, which is delivered in one or more Plans.

"Site" means the Retrofit-operated website through which the Service is made available to you.

"Subscription Fee" means, as set forth in the Plan, the charge to the Client for Services provided by Retrofit.

"Subsidiary" means any entity controlling, controlled by, or under common control of Retrofit.

"Wellness Professional" means an independent contractor or employee of Retrofit who has been engaged or assigned by Retrofit to consult with and make recommendations to Retrofit's clients as part of the Service.

"Weight Loss Goal" means your specific weight loss program percentage as defined in the Plan or such other agreed upon weight loss percentage that would not drive your weight below a healthy weight range.

2. Use of the Service.

2.1 General. Subject to the terms and conditions of this Agreement, and during the term of this Agreement, Retrofit grants you a non-exclusive and non-transferable right to access and use the Service in accordance with the terms of this Agreement, a specific Plan, and any Documentation made available to you by Retrofit. The Service has been designed by Retrofit with the goal of assisting people who are overweight in weight loss and weight management. You agree that, in order to increase the probability of success in your efforts to lose or manage your weight, you must at a minimum: (a) follow Retrofit's protocol, as provided in any Documentation, to the best of your ability; (b) complete all recommended appointments with your Wellness Professionals; (c) weigh yourself on the Retrofit-provided scale every day while not traveling; and (d) carry or wear the Retrofit-provided wireless activity tracker at all times. EVEN IF YOU CARRY OUT THE FOREGOING REQUIREMENTS, YOU UNDERSTAND AND AGREE THAT INDIVIDUAL RESULTS VARY, AND THAT RETROFIT DOES NOT GUARANTEE WEIGHT LOSS. You also understand and agree that we may, but we are not obligated to, modify the Service, Plan, and the Documentation for a variety of reasons, including for consistency with the most recent weight loss and weight management research. Your specific Weight Loss Goal will be modified to a lower agreed upon weight loss percentage if your weight loss would drive your weight below a healthy weight range.

2.2 Wellness Professionals. As part of the Plan and Service, Retrofit will provide you with access to Wellness Professionals, who will consult with you by videoconference or telephone. You agree to work with your Wellness Professionals in good faith solely with respect to the Service, and you will not seek consultation from your Wellness Professionals for any other purpose. If you need to reschedule an appointment with a Wellness Professional, you agree to do so at least 24 hours in advance, or the session will be debited from your pre-paid account. In addition, if you miss a scheduled appointment, the session will be debited from your pre-paid account. You agree to conduct your sessions with Wellness Professionals alone, with no observers, and you will not record any such session in any way. You also understand and agree that Retrofit may replace any Wellness Professional assigned to you at any time, with no advanced notice.

2.3 Your Health. RETROFIT IS NOT A MEDICAL ORGANIZATION. YOU SHOULD NOT CONSIDER THE SERVICE OR THE DOCUMENTATION AS MEDICAL ADVICE OF ANY KIND, AND THE SERVICE IS NOT INTENDED TO TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION. Retrofit is not a licensed medical care provider, and we have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You are urged and advised to seek the advice of a physician before beginning your use of the Service, and to get periodic medical check-ups as recommended by your primary-care physician. By using the Service, you represent that you are an adult who is healthy enough to begin a weight loss regimen that includes dieting and exercise. The Service is not intended for use by minors. If you are currently under the care of a health care professional or are living with a chronic health care condition, you represent that you have obtained the express approval from a health care professional to receive the Services before beginning. Never disregard professional medical advice or delay in seeking it because of something you have been told by Retrofit staff or any Wellness Professional.

2.4 Registration and Use of the Site. You represent and warrant that the data that you provide about yourself in filling out the Retrofit account registration form are and will remain accurate and complete, and you agree to update such data as necessary to maintain their accuracy, including providing Retrofit with your current email address, so that you may receive notifications and other account-related communications. You are responsible for maintaining the confidentiality of the login and password you use to access the Site. You will be responsible for all uses of your login and password, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of the Site, including any unauthorized use of your login or password. Your general use of the Site is subject to our Terms of Use, which is incorporated and made part of this Agreement.

2.5 Restrictions. You may not: (a) license, sell, transfer, distribute, or otherwise commercially exploit or make available to any third party, access to the Service or any of the Documentation; (b) modify or make derivative works based on the Documentation or the Site; (c) use any robot, spider, or other automatic device or manual process to monitor or access the Site, record any interaction with a Wellness Professional, or in any way duplicate the Documentation; (d) copy any content, features, functions, or graphics of the Documentation or the Site other than in connection with your own personal use of the Service; (e) use the Site or the Service in a manner intended to abuse or violate the privacy or property rights of others; (f) tamper with or knowingly take any other action that may negatively affect the use of the Service or Documentation, or the functionality of the Site or any Retrofit Gear; (g) reverse engineer, disassemble, or decompile the Site or any Retrofit Gear; or (h) use the Service, Site, Documentation, or Retrofit Gear to build a competitive website or service, or to build a product or service using similar ideas, features, or functions.

3. You Assume All Risk In Using the Service.

Not all exercises or activities recommended by Retrofit or any of the Wellness Professionals, or otherwise made available on the Site or in the Documentation, are suitable for everyone. You understand and agree that when participating in any exercise or exercise program, there is the possibility of injury or death. As such, YOU AGREE TO USE YOUR OWN JUDGMENT AT ALL TIMES DURING YOUR USE OF THE SERVICE IN ORDER TO DETERMINE IF ANY RECOMMENDED EXERCISE OR ACTIVITY IS SUITABLE FOR YOU. If you feel any discomfort or pain during your use of the Service, you must immediately stop the exercise or activity causing such discomfort or pain, and dial 911 using your telephone if you need emergency help.

Retrofit will not be responsible for any health problems or injuries that you may experience as a result of receiving the Services, including from training programs, products, or events you learn about through the Service. YOU HEREBY AGREE THAT YOUR USE OF THE SERVICE, INCLUDING YOUR USE OF ANY EXERCISE PROGRAM RECOMMENDED BY RETROFIT OR ANY WELLNESS PROFESSIONAL, IS AT YOUR OWN RISK AND THAT YOU ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES, EVEN IF ANY ASPECT OF THE SITE OR DOCUMENTATION IS INACCURATE, INCOMPLETE, OR INAPPROPRIATE IN THE MANNER IT WAS PRESENTED.

4. Term and Termination.

4.1 Term. Unless otherwise specified in the Plan or Confirmation Email, the term of this Agreement will begin on the Acceptance Date and will continue for an initial term of 12 months from the Acceptance Date. Unless Retrofit elects not to renew your subscription, Retrofit will send by email a notice of renewal to you, which will set forth the associated annual subscription fee, at least 45 days before the end of the initial term. If you agree to renew in accordance with the notice of renewal, the term of this agreement will continue for a 12-month renewal term, and the foregoing notice and renewal process will be repeated.

4.2 Termination by Retrofit. Retrofit may, at its option and in its sole discretion, suspend or terminate your subscription and your access to the Service and the Site if you (a) violate any provision of this Agreement or our Terms of Use, or (b) if you engage in any conduct that we believe is offensive to Retrofit staff, violates the rights of Retrofit or any third party, or could in our judgment cause Retrofit liability.

4.3 Effect of Termination. Upon the termination of this agreement, you agree to delete all copies of any Documentation in your possession or control.

4.4 Survival. Sections 3, 4.3, 5.1, 5.3, 5.4, and 6 through 10 will survive the termination or expiration of this Agreement.

5. Fees.

5.1 Subscription Fee. Your Subscription Fee, as set forth on the payment page of the Plan, is presented to you during the registration process and in the Plan and/or Confirmation Emails. Unless otherwise specified in the Plan and/or Confirmation Emails, the subscription fee is for a full one-year term, and you are responsible for the full Subscription Fee from the Acceptance Date, even if you stop using the Service before the end of one year.

5.2 Cancellation Fee. If you cancel your participation in any Plan prior to completing a full one-year term, Retrofit reserves the right to charge a cancellation fee to cover the cost of any administrative expenses (including legal cost), or the cost of non-returned or damaged equipment. The cancellation fee will be charged directly to the credit card provided to Retrofit in the registration process or other credit card provided at the time of cancellation.

5.3 Promotions. Any promotion offered has no independent cash value and may not be combined with any other offers.

5.4 Taxes. You will be responsible for all taxes of whatever kind or nature imposed by any governmental authority upon any services provided to you hereunder, excluding taxes based upon Retrofit's income or property.

5.5 Retrofit Promise. THERE ARE NO REFUNDS. However, if at the end of the initial 12-month term you notify us in writing that your use of the Service has not resulted in the achievement of your Weight Loss Goal (depending on which tier of the Service you have selected) or a lower agreed on goal, and you have in good faith met the requirements of the Service's protocols (as set forth in the Documentation), and you have complied with the dietary and exercise recommendations provided to you by Retrofit and the Wellness Practitioners, Retrofit will extend participation in the same Plan to you for an additional 12-month renewal term at no charge.

6. Referral Program

Retrofit offers an optional referral program. If you opt into participate in the program, the following standards apply:

Anytime a friend uses your personal referrer code, you will earn 10% of the price your friend pays to Retrofit as a referral payment. Your earnings are subject to full collection of the user’s payment to Retrofit.

You will be provided monthly notice of referral payments generated through your personal referrer code usage. In order to receive your referral payments, you must provide Retrofit with any information it needs to make the referral payment. Your payment will be mailed within 30 days of Retrofit receiving the information it needs, whichever is later. Your earnings will expire on December 31 of the calendar year in which the payments were earned if you do not provide Retrofit with the information it needs to make the payments. All referral payments will be made by check, which may require the completion of a Form W-9 and a 1099-MISC for income tax purposes.

The referrer code is intended only for personal use by your friends and family. Any other usage will result in immediate deactivation of your personal referrer code. No referral payments will be made for this fraudulent activity.

7. Proprietary Rights.

7.1 Reservation of Rights by Retrofit. Retrofit is the owner or licensor of all right, title, and interest in the Service, Site, Documentation, and Retrofit Gear, including all related intellectual property and other proprietary rights therein. No rights in these items are granted to you except as expressly set forth in this Agreement. You acknowledge and agree that the Service, Site, Documentation, and Retrofit Gear, and any technology, written materials, and logos used in connection with these items, contain Retrofit's and its licensors' intellectual property and other proprietary information, and are protected by United States and international intellectual property laws. Your infringement or misappropriation of such intellectual property and other proprietary information could expose you to both civil and criminal penalties under applicable laws.

7.2 License to Client Data. You grant Retrofit a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, and perpetual right and license to store, copy, and use Client Data in order to (a) provide the Service to you, (b) analyze and improve the Service, Site, Documentation, and Retrofit Gear, (c) conduct research on the efficacy of the Service, Site, Documentation, and Retrofit Gear. You further grant Retrofit permission to publish de-identified Client Data (i.e., Client Data that is made anonymous by removing your name and other identifiers that could foreseeably be used to identify you) as part of research studies, academic papers, and scholarly articles based any such research.

7.3 Suggestions. You hereby grant Retrofit a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, and perpetual right and license to use or incorporate into the Service, Site, Documentation, and Retrofit Gear any ideas, suggestions, enhancement requests, recommendations or other feedback that you provide to us.

8. Confidentiality.

8.1 Your Obligations. You may not, without Retrofit's prior written consent (a) use the Proprietary Information except in conjunction with your use of the Service, or (b) disclose any of the Proprietary Information to any other person.

8.2 Retrofit's Obligations. Retrofit will use commercially reasonable efforts to safeguard Client Data and any other information we collect about you in accordance with our Privacy Policy.

9. No Warranties; Limitation of Liability; Indemnification.

9.1 Disclaimer of Warranties. THE SERVICE, SITE, DOCUMENTATION, AND RETROFIT GEAR ARE PROVIDED BY RETROFIT STRICTLY ON AN "AS IS", WITH ALL FAULTS, AND "AS AVAILABLE" BASIS. RETROFIT DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ACCESS TO THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. RETROFIT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

9.2 Limitation of Liability. THE CUMULATIVE AGGREGATE LIABILITY OF RETROFIT, ITS SUBSIDIARIES, AND THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS PROFESSIONALS), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE WILL BE LIMITED TO THE FEES PAID BY YOU HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL RETROFIT, ITS SUBSIDIARIES, OR THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS PROFESSIONALS), HAVE ANY LIABILITY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES INCURRED BY YOU (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST WAGES), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT RETROFIT WAS ADVISED SUCH DAMAGES MIGHT ARISE. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION CONSTITUTE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND RETROFIT.

9.3 Indemnification. You agree to defend and indemnify Retrofit, its Subsidiaries, and their officers, directors, managers, members, agents, and representatives (including the Wellness Practitioners) against any claim, demand, action, lawsuit, and liability (including reasonable attorneys' and experts' fees) arising out of, or alleged to result from, your use of the Service or your breach of this Agreement.

10. Miscellaneous.

10.1 Your Online Data. You agree to provide Retrofit with access to (i.e., usernames and passwords for) your online accounts associated with your Retrofit Gear (including your accounts on www.fitbit.com and www.withings.com) so that we may monitor your data on these accounts. For avoidance of doubt, all such data will be deemed Client Data for purposes of this Agreement.

10.2 Subcontractors. Retrofit may subcontract some or all of its obligations under this Agreement, without providing any prior notice to you.

10.3 No Third Party Beneficiaries. Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than you and Retrofit.

10.4 Assignment. You may not assign or transfer your rights or obligations under this Agreement to any other person or entity.

10.5 Use of "Including". Wherever the word "including" is used in this Agreement, it is not intended to limit the proposition preceding it, but is rather intended to mean "including but not limited to."

10.6 Force Majeure. Neither party will be responsible for delays or failure in performance (other than failures to make payments due under this Agreement) resulting from acts beyond the reasonable control of such party, including acts of God, strikes, lockouts, riots, acts of war, terrorism, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.

10.7 Governing Law; Dispute Resolution. This Agreement will be governed by and interpreted in accordance with the laws of the State of Illinois, without regard to its principles regarding conflicts of law. The United Nation's Convention on Contracts for the International Sale of Goods is expressly disclaimed. Except as expressly set forth below in this paragraph, all disputes arising out of or relating to this Agreement or your use of the Service will be determined exclusively by arbitration in Chicago, Illinois, before a single arbitrator. The arbitration will be administered by JAMS (www.jamsadr.com) in accordance with its Streamlined Arbitration Rules, and judgment on any award may be entered in and enforced by any court of competent jurisdiction. Notwithstanding the foregoing, you agree that Retrofit may file a lawsuit in a state or federal court situated in Chicago, Illinois if we seek any type of temporary or permanent injunction against you, or if we have a reasonable belief that you are infringing or misappropriating any of our intellectual property or other proprietary rights, and for the purpose of such lawsuit you hereby submit to the exclusive jurisdiction of state or federal courts situated in Chicago, Illinois.

10.8 Entire Agreement. This Agreement and the Confirmation Emails constitute the sole and complete agreement between the parties with regard to the Service, and supersede all prior and contemporaneous agreements, proposals, representations, warranties, or promises, whether written or oral, relating to the Service.

10.9 Severability. If any provision of this Agreement is adjudicated to be contrary to law, the provision will be modified and interpreted so as to best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

10.10 Manner of Giving Notice. All notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email. Retrofit will send notices to the address you provide to Retrofit during your use of the Service. You agree to send notices to Retrofit to the following address: Attn: Chief Executive Officer, Retrofit Inc., 123 N. Wacker Dr. Suite 1250, Chicago, Il 60606.