TERMS AND CONDITIONS FOR USE OF DESK TRAINER'S SOFTWARE
Important Notice: The following terms and conditions govern the use of Desk Trainer's software for workstation exercise developed in the Anat Baniel MethodSM based on the Work of Dr. Moshe Feldenkrais (the "Agreement"). This is a legally binding contract. Please read it carefully. By clicking the "I Accept" button and/or using said software, you accept all the terms and conditions of this Agreement. If you do not agree to (or cannot comply with) all of the terms of this Agreement, you must click the "I Reject" button and you must not use said software.
PLEASE TAKE NOTICE that Desk Trainer's software and the content of Desk Trainer's website are intended solely to provide exercises, and do not purport to provide medical advice or statement of a professional opinion and are not a substitute for medical consultations, treatments, medications or other instructions the individual user may receive from any specialist. If you experience pain when performing any movement that is requested in any of the exercises, discontinue the movement immediately. The suitability of the content and exercises contained in said software and website depends on the individual facts and circumstances of each and every user, and therefore should be treated with the appropriate degree of caution. The exercise with Desk-Trainer’s Software is completely voluntary, adjustable and should be conducted at your own pace, at a suitable surrounding
1. Grant of License, Permitted Use of Software
1.1. Subject to the terms and condition of this Agreement, and the payment of the license fees, Desk Trainer Ltd. ("DT") hereby grants you with a limited, non-exclusive, non-transferable license to use DT's software for workstation exercise in the Anat BanielSM Method based on the Work of Dr. Moshe Feldenkrais (the "Software"), in machine-readable, object code form only and any user manuals and instructions that may accompany the Software (respectively, the "License", "Documentation").
1.2. The Software may be accessed through on DT's website at www.desk-trainer.com (respectively, the "Website", "Web License") or delivered to you by DT on Compact Disc to the address specified in the purchase order ("CD License").
1.3. Unless expressly agreed in this Agreement, you shall not (i) modify or create any derivative works of all or any portion of the Software, including translation or localization; (ii) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to all or any portion of the Software; (iv) copy all or any portion of the Software; or (v) remove any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Software.
1.4. You shall not perform any of the following acts without receiving the prior written consent of DT: (i) commercially exploit any of the Software; (ii) take any actions which might effect DT's ability or opportunities to market the Software; (iii) provide any services to third parties using the Software, whether by way of trade or otherwise, other than services provided within the authorized use of the Software as licensed by you; and (iv) perform any testing, study, or analysis of the Software other than as required to ensure the proper functioning of the Software.
1.5. In the event that you have purchased a Web License, the following terms shall apply in addition to the foregoing:
1.5.1. For the purpose of this Agreement the term "Software" shall include any updates, enhancements, modifications, revisions, or additions thereto, which DT may (but is not obliged to) make available from time to time on the Website.
1.5.2. The Software may not be pooled or used on any additional server and/or CPUs other than the servers upon which DT installed the Software, and may not be downloaded.
1.5.3. Only one individual may use the Software using the same Web License. You shall maintain the confidentiality of the username and password DT shall provide you (the "Web License Key"). You shall be fully responsible for all activities that occur under your Web License Key. You may not make copies of your Web License Key and/or transfer it to any other third party. DT reserves the right to gather data on Web License usage to ensure that it is being used in accordance with the terms of this Agreement. You agree not to block, electronically or otherwise, the transmission of such data. Any blocking of such data may result in immediate termination of your access to the Website and/or your Web License.
1.5.4. Depending on the type of Web License you purchased, it includes an expiration date upon which it shall terminate. Notwithstanding the foregoing, in the event that DT determines that your Web License is used in violation of the terms of this Agreement it may terminate this Agreement, pursuant to Section 9 hereof. If you suspect any improper or illegal usage of your Web License outside of your control you should promptly notify DT of such occurrence. A replacement Web License will be issued to you and the suspected Web License will expire. It is your responsibility to contact DT regarding any potential termination that you deem inappropriate.
2. Proprietary Rights
2.1. The Software is licensed to you for use in accordance with the terms and conditions of this Agreement, not sold. The Software is protected by copyright law, other intellectual property laws, and by international treaties. The Software, its structure, organization, and code constitute valuable trade
sec rets of DT and its suppliers. All rights, title and interest in and to (i) the Software, including any and all copies of any compact discs, the Documentation that may be included in, or provided in connection with, the Software; (ii) any information contained in the Website; and (iii) any know-how, trademarks, patents, copyrights, trade names, trade
sec rets, designs, formulas, procedures, methods, apparatus, ideas, inventions, creations, improvements, works of authorship and other similar material, whether subject to protection under patent, copyright or trade
sec ret law or any other statutory provision or common law doctrine contained in or associated with the foregoing (the "Intellectual Property Rights") is owned by and shall remain with DT and/or its suppliers. You acknowledge such ownership and Intellectual Property Rights and will not take any action to jeopardize, limit or interfere in any manner with the same. Except as explicitly provided in this Agreement, DT does not grant you any license express or implied. All rights not explicitly granted hereunder are reserved by DT.
3. Your Representations and Obligations
3.1. You represent that you are of legal age to form a binding contract and are not barred from receiving services under the laws of the state of or any other applicable jurisdiction.
3.2. You shall provide true, accurate and complete information as required from you in the registration form (such information being the "Registration Data").
3.3. You shall maintain and update the Registration Data to keep it true and complete.
3.4. If you provide any information that is untrue or incomplete or DT has reasonable grounds to suspect that the Registration Data is untrue or incomplete, DT has the right to suspend or terminate your License.
4. Privacy of User Information
In the event that you have purchased a Web License, the following terms shall apply to all information and data provided by you in order to use the Web License (the "User Information"):
4.1. You acknowledge that during the term of this Agreement DT may do the following, to the extent necessary in performance of its obligations hereunder: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, the User Information; and (b) make archival or back-up copies of the User Information. In addition, DT may use User Information for statistical purposes or as necessary to comply with any applicable law.
4.2. Except for the rights expressly granted above, DT is not acquiring any right, title or interest in or to User Information and, as such, does not guarantee the accuracy, integrity or quality of such User Information.
4.3. Under no circumstances will DT be liable in any way for any User Information or for the loss or damage thereof.
4.4. Unless otherwise explicitly stated, herein, any User Information provided by you shall be deemed to be provided on a nonproprietary and non-confidential basis and you acknowledge that you are solely responsible for its accuracy.
5. Advertisements, Promotions and Links
5.1. DT may run advertisements and promotions from third parties on the Website. Any correspondence or business dealings with, or participation in promotions of, advertisers other than DT, found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. DT is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-DT advertisers on the Website.
5.2. DT may provide either directly or by third parties, links to other websites. You acknowledge that DT is not responsible for the availability of such websites and is not responsible or liable for any content, advertising products or other material on or available from such websites. DT shall not be responsible or liable, directly or indirectly for any damages or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available through any such websites.
6.1. Repair, Replacement and Refund Policy. Subject to the limitations set forth below, DT hereby represents and warrants to you that for a period of thirty (30) days from the date you receive the Web License Key from the Website or the CD in case of a CD License, as applicable (such period being hereinafter referred to as the "Warranty Period") the Software shall be free from material defects and shall substantially conform to the Documentation (which was provided to you by DT or was made generally available to DT's cust
omer s of the Software). Your sole and exclusive remedy for a breach of the foregoing warranty shall be limited, at the option of DT, to either (i) the repair or replacement of the Software, or (ii) a refund of the amount paid by you for the non-conforming Software. Such remedies shall be available to you only if DT is notified in writing within the Warranty Period and is provided with a reasonable opportunity to cure such breach.
6.2. The warranty set forth in Section 6.1 hereof is conditioned upon proper use of the Software in the application for which it is intended and shall not apply to (a) any Software (i) that has been modified in any respect without the prior written consent of DT, (ii) that has been serviced or repaired by or on your behalf, without the written approval of DT, (iii) that has been damaged by reason of accident, neglect, misuse, air conditioning, failure of electrical power, inappropriate operating environment, or conditions, or failure to comply with applicable operating and maintenance instructions, or any cause other than ordinary use, (b) any User Information which have been loaded on the Website by you, or (c) any other DT or third party software or hardware which the Software interfaces to, accesses, calls, or invokes.
6.3. THE WARRANTY SET FORTH IN SECTION 6.1 IS EXCLUSIVE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER DT NOR ANY OF ITS SUPPLIERS WARRANT THAT THE SOFTWARE WILL (I) OPERATE UNINTERRUPTEDLY OR ERROR FREE (II) MEET YOUR REQUIREMENTS (III) WILL ACHIEVE ACCURATE, RELIABLE OR SATISFACTORY RESULTS.
6.4. YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS OR FOR YOUR PARTICULAR APPLICATIONS. THE CONTENT OF THE SOFTWARE AND THE WEBSITE DOES NOT PURPORT TO CONSTITUTE A MEDICAL ADVICE OR THE STATEMENT OF A PROFESSIONAL OPINION OR A SUBSTITUTE FOR CONSULTING WITH A SPECIALIST. THEREFORE, THE REMEDY PROVIDED IN SECTION 6.1 HEREOF SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF DT TO CONFORM WITH THE WARRANTY IN SUCH SECTION, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU SHALL NOT HAVE ANY CLAIM, EXCEPT AS AFORESAID, AGAINST DT, ITS OFFICERS OR EMPLOYEES OR THE MANUFACTURER, LICENSORS OR THIRD PARTY PROVIDERS AND SUPPLIERS, WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TRADE PRACTICES, OR OTHERWISE. REPAIR, OR REFUND (AS ELECTED BY DT) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF DT WITH RESPECT TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. ANY USE OF THE SOFTWARE AND/OR THE WEBSITE OR RELIANCE ON THE EXERCISES THEREIN IS AT YOUR SOLE AND ABSOLUTE RESPONSIBILITY.
6.5. ALL USER INFORMATION UPLOADED BY YOU TO THE WEBSITE, IF ANY, IS DONE AT YOUR OWN DISCRETION AND RISK. YOU ACKNOWLEDGE THAT DT DOES NOT WARRANT OR GUARANTY THE SECURITY OF THE SOFTWARE AND USER INFORMATION OR OF COMMUNICATIONS MADE USING THE SOFTWARE, AND YOU ASSUME ALL RISKS ASSOCIATED WITH THE SAME.
7. Limitation of Liability
7.1. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY, IF ANY, OF DT, ITS OFFICERS OR EMPLOYEES OR THE LICENSOR, MANUFACTURER OR SUPPLIER FOR DAMAGES RELATING TO THE SOFTWARE OR OTHERWISE ARISING OUT OF, RELATED TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT EXCEED THE ACTUAL AMOUNT YOU PAID FOR THE SPECIFIC LICENSE THAT DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TRADE PRACTICES OR OTHERWISE. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DT, ITS OFFICERS OR EMPLOYEES OR THE MANUFACTURER, LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR RELIANCE DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA OR LOSS OF USE DAMAGES) EVEN IF DT IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. DT SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY DELAY OR FAILURE TO PERFORM ANY OF DT'S OBLIGATIONS HEREUNDER AS A RESULT OF ANY CAUSE BEYOND ITS REASONABLE CONTROL.
8.1. You may not assign this Agreement and the License granted hereunder to any other third party without the prior written consent of DT.
9. Term, Termination and Consequences of Termination
9.1. This Agreement shall enter into effect upon your acceptance of this Agreement or upon you using the Software, even if not expressly accepted by you, and shall remain in effect until terminated by DT pursuant to this Agreement or the expiration date of a Web License (if applicable), whichever is earlier.
9.2. DT shall have the right to terminate this Agreement, terminate your License and/or block any access to the Website in the event that: (i) you are in material breach of this Agreement; (ii) it has been requested so by law enforcement or government officials; (iii) you become insolvent; (iv) a receiver has been appointed to you; (v) DT did not receive the License fees due hereunder; or (vi) you do not accept this Agreement, as may be amended from time to time.
9.3. DT shall not liable for any damages or costs incurred in connection with the expiration and/or termination of this Agreement and/or the License.
9.4. Any breach of the Agreement will result in irreparable harm to DT for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, DT will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other
sec urity if DT seeks such an injunction.
9.5. Termination by DT hereto is without prejudice to any other rights or remedies under the general law to which they may be entitled, or which survive such termination.
9.6. Upon termination of this Agreement or expiry of its term (i) you shall be denied access to the Software and/or Website; (ii) your Web License shall be expired and all related information, files and User Information associated with you usage of the Web License shall be removed from the Website and shall be deleted after a period of 30 days following the termination (if applicable). Without derogating from Section 9.3 above, DT may, but is not obliged to, provide you with an advance notice prior to the expiration of the Web License to allow you to renew your Web License and avoid such deletion.
9.7. The provisions of Sections 2, 6, 7, 9, 10, 13, 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement.
10.1. You acknowledge that you may obtain direct access via the Software and/or Website to certain DT confidential information (the "Information"). You must hold the Information in strict confidence. Title to the Information remains with DT and/or its suppliers.
10.2. You do not acquire any rights in Information, except the limited right to use Information as described above.
10.3. The term "Information" does not include information that you can establish by legally sufficient evidence: (a) you possessed, or knew, prior to your receipt from DT, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of this Agreement; (c) you obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently developed without the use of the information received from DT; or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under this Agreement and as disclosed after prior notice to DT adequate to afford DT the opportunity to object to the disclosure.
10.4. You shall use your best efforts to cooperate with and assist DT in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, information regarding Licenses and User Information or any portion thereof.
11. License Fees
11.1. You will pay to DT in consideration of the License granted under this Agreement the License fees indicated in the purchase order. DT does not refund License fees. By accepting this Agreement you fully understand that once License fee payment is made you will have no recourse for receiving a refund of any part of the fees unless otherwise specified herein.
11.2. In the event DT does not receive the License fees from you, it shall have the right, without any notification, to terminate the License and your access to the Website, pursuant to Section 9 hereof.
11.3. You shall, in addition to the License fees, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated hereunder, excluding VAT levied by the state of Israel (if applicable) and income taxes on the net profits of DT. You shall reimburse DT, if the case need be, for the amount of any such taxes or duties paid or incurred directly by DT as a result of the transaction contemplated hereunder.
12. Remedies, Indemnification
12.1. In the event that the use of the Software in accordance with the provisions of this Agreement is declared by a court of competent jurisdiction to infringe the rights of any third party, as your sole remedy, DT at its option shall (i) procure for you the right to use the Software or (ii) modify the Software to render it non-infringing.
13.1. DT may provide notices of changes to this Agreement or other matters by displaying notices or links to notices to you generally on the Website. DT reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the services provided on the Website (or any part thereof) with or without notice. Any termination of the access to the Website under any provision of this Agreement may be effected without prior notice, and DT may immediately de-activate or delete the Web License and all related User Information and files and/or bar any further access to such User Information or the Software or the Website.
14. Support and Maintenance
14.1. Support and maintenance shall be provided by DT via email, according to the support and maintenance guidelines as may be set out and published by DT from time to time.
15.1. No Waiver. Any failure or delay by DT to exercise or enforce any right conferred to it by this Agreement shall not be deemed to be a waiver of such right.
15.2. Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of law of competent jurisdiction, such a finding shall not affect the other provisions of this Agreement and all provisions of this Agreement unaffected by such a finding shall remain in full force and effect.
15.3. Notices. All notices and communications between the parties hereto shall be in writing and sent by (i) certified mail, return receipt requested; (ii) overnight courier; or (iii) facsimile (with original to follow) (a) if to you, to the address specified in writing by you to DT (including during your registration to the Website), and (b) if to DT, to the address of DT's office as set forth below. Notwithstanding the foregoing, DT may give written notices to you via email to your email address as maintained in the purchase order or User Information.
15.4. Governing law. This Agreement is governed and constructed solely in accordance with the laws of the state of , and the courts of the state of shall have sole and exclusive jurisdiction over any dispute out of the undertaking.
15.5. No Third Party Beneficiaries. You agree that there shall be no third party beneficiaries to the License and/or this Agreement.
15.6. Headings. The headings in this Agreement are for convenience only and have no legal or contractual effect.
15.7. Reference. Any reference to this Agreement includes reference to the incorporated guidelines or any other agreements, guidelines or instructions issued by DT and published either on the Website or by notice to you.
15.8. Amendment. DT reserves the right, in its sole discretion, to amend this Agreement from time to time and the terms applicable with respect to any transaction will be the terms published in the Website and confirmed by you at the date of the closing of said specific transaction. If there is a conflict between this Agreement and the most current version of this Agreement, then the version posted at the Website will prevail. If you do not accept amendments made to this agreement, then this License will be immediately terminated pursuant to Section 9 hereof.
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