Terms of Service

 

TERMS OF SERVICE FOR HOT5š BY WEIGHT WATCHERS

 

Last Revised: December 6, 2015

 

These Terms of Service (these "Terms") apply to the mobile application Hot5 by Weight Watchers ("Hot5" or "the App") provided by Weight Watchers International, Inc., its subsidiaries and/or its affiliates ("Weight Watchers" "our," or "we"). 

 

BY REGISTERING, USING OR ACCESSING THE APP AND CLICKING THE BUTTON TO ACCEPT AND AGREE TO THESE TERMS OF SERVICE, OR OTHERWISE USING OR ACCESSING THE SITE AND/OR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ THESE TERMS; (B) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS; AND (C) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS.

 

Weight Watchers reserves the right to change or modify any of the terms and conditions contained in these Terms (or any policy or guideline of the Apps) at any time and in its sole discretion. If Weight Watchers makes changes to these Terms, we will provide notice of such changes by updating the "Last Updated" date at the top of these Terms and posting the revised Terms to our Services. Your continued use of any of the Services will constitute your acceptance of such changes or modifications. Therefore, you should review these Terms whenever you access the App to make sure that you understand the terms and conditions that will apply to your use of the Services.

 

1.   ELIGIBILITY You represent and warrant that you (a) have reached the age of majority in your state/province of residence, (b) have no medical condition and/or disability that would make it unsafe or unadvisable for you to engage in fitness activities such as those contained in the App, (c) have not been previously suspended or removed from using the App, and (d) are a resident of the United States or Canada.

 

2.   ACCOUNT To access certain areas and features within the App, you may be asked to provide certain information to Weight Watchers (e.g., your weight for the purpose of calculating FitPoints). You agree to (a) provide accurate, truthful, current and complete information; (b) maintain and promptly update your information as applicable; (c) maintain the security of your information by not sharing your password with others and restricting access to your information; and (d) take responsibility for all activities that occur with respect to your information and accept all risks of unauthorized access.

 

3.   PRIVACY Please see Weight WatchersÕ privacy policy (for U.S. residents) at  https://www.weightwatchers.com/us/privacy/policy  for information about how Weight Watchers collects, uses and discloses information about users of the App (or, for Canadian residents, at http://www.weightwatchers.ca/legal/privacy.aspx).

 

4.   SERVICES

 

Access to Hot5. On the condition that you comply with these Terms, Weight Watchers hereby grants you a non-exclusive, non-transferable, revocable license to access and use Hot5 (including any Material therein) solely in the manner permitted by these Terms. If Weight Watchers, in its sole discretion, elects to provide any upgrade that replaces or supplements the original version of Hot5, this license will govern any such upgrade unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.

 

Modifications to Hot5. Weight Watchers may review, improve, change, or discontinue (temporarily or permanently) Hot5 or any features, information, materials, or content made available via Hot5 at any time, with or without notice to you. If you no longer wish to use Hot5 following any such modifications, you should cancel your account by sending an email to hot5@weightwatchers.com. 

 

Third Party Services. Hot5 require the use of certain third party products and services ("Third Party Services") identified in Hot5. Use of any Third Party Services is at your sole risk and will be governed by separate terms and conditions, separate privacy policies relating to usage of data you may share through the Third Party Services in the course of using Hot5, other applicable policies, and may include separate fees and charges. Weight Watchers may display content from third parties through Hot5 or may provide information about or links to Third Party Services. Your interactions with any such third parties, and any terms, conditions, warranties, or representations associated with such interactions, are solely between you and the applicable third parties. Weight Watchers is not responsible or liable for any loss or damage of any sort incurred as the result of any such interactions or as the result of the presence of such third-party information made available through Hot5. If you are not able to access or use the Third Party Services for any reason, you will not be able to use the Services, and your sole remedy will be to cancel your account and terminate these Terms.


 

 

5.  FEES AND PAYMENT TERMS

The App provides a 6 month or annual non auto-renewable subscription for access to Hot5 (a "Subscription Period") at the prices set forth below, paid in advance of the beginning of each applicable Subscription Period. If the applicable fees are not paid prior to the beginning of the Subscription Period, your access to the App will be terminated until you pay the applicable fees. Weight Watchers, at its sole discretion, may modify the pricing during any Subscription Period and such pricing changes will be effective as of the directly subsequent Subscription Period. All payments must be made: (a) in U.S. Dollars for US residents or in Canadian Dollars for Canadian residents and (b) by credit/debit card via an authorized Weight Watchers payment processor. You hereby: (i) authorize Weight Watchers (or its authorized payment processor) to charge the credit/debit card number provided to us; and (ii) represent and warrant that you are authorized to use and have fees charged to the credit/debit card number provided tous. You may withdraw such authorization by utilizing the cancellation mechanism provided via the App, or, if no mechanism is available via the App, emailing us at hot5@weightwatchers.com.

 

The fees for Hot5 in the U.S. are as follows:

¥   Monthly Fee USD $1.99 

¥   Annual Fee USD $14.99

 

For Weight Watchers Subscribers: Subscribers to Weight Watchers Meetings, eTools or Weight Watchers OnlinePlus may access Hot5 Premium at no additional fee by logging in with their Weight Watchers user name and password.  Information you have provided to Weight Watchers (e.g., your weight and height) will be used to calculate FitPoints when you do the fitness activities in the Hot5 app. FitPoints earned through Hot5 will automatically sync to your Weight Watchers account.

 

6.      RESTRICTIONS ON USE OF HOT5

You are solely responsible for your conduct (and the conduct of anyone who uses Hot5 on your behalf) with respect to Hot5, which you use at your own risk. Except as expressly permitted in writing by Weight Watchers, you will not do, and will not permit any third party to do, any of the following:

¥   rent, lease, lend, sell, sublicense, or create derivative works of Hot5;

¥   distribute Hot5 or make Hot5 available over a network where it could be used by multiple devices at the same time;

¥   modify, disclose, decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, or algorithms of Hot5 or any part of Hot5, except to the extent required by applicable law;

¥   remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in Hot5;

¥   use Hot5 in any manner that could interfere with, disrupt, negatively affect, or inhibit Hot5Õs other users from fully enjoying Hot5 or that could damage, disable, overburden, or impair the functioning of or Hot5;

¥   use Hot5 for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms;

¥   attempt to gain unauthorized access to Hot5 or their related systems or networks;

¥   use Hot5 to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of  the rights of Weight Watchers or any third party;

¥   impersonate or use Hot5 by misrepresenting your affiliation with a person or entity;

¥   build a competitive product or service, or copy any features or functions of Hot5;

¥   disclose to any third party any performance information or analysis relating to Hot5; or

¥   cause or permit any third party to do any of the foregoing.

If you violate (or are alleged to have violated) any of the foregoing restrictions, your license to use Hot5 will immediately and automatically terminate, and you may have infringed the rights of Weight Watchers, which may subject you to prosecution and damages.

 

7.   ACCEPTABLE USE POLICY

In using Hot5, you may not upload, use, create, transmit, store, display, distribute, share or otherwise make available any content, descriptions, or information that:

¥   is illegal or fraudulent or that would encourage, solicit, foster, glorify or provide instructions for any criminal or civil offense;

¥   may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, to any animal or to any property;

¥   is obscene, pornographic, indecent or sexually explicit;

¥   depicts graphic, excessive or gratuitous violence, or make any threats to commit violent acts;

¥   is derogatory, demeaning, inflammatory, malicious, defamatory, abusive, offensive, hateful, harassing, humiliating to other people (publicly or otherwise), libelous or otherwise objectionable;

¥   you do not have a right to make available under any law or under contractual or fiduciary relationships;

¥   you know is untruthful; or

¥   infringes, misappropriates or violates the intellectual property or proprietary rights of others (including, but not limited to, rights of privacy and rights of publicity).

Weight Watchers reserves the right, but is not obligated, to investigate any violation of this Section 7 or misuse of the App. Enforcement of this Section 7 is solely at Weight Watchers' discretion, and failure to enforce these Terms in some instances does not constitute a waiver of Weight Watchers' right to enforce this Section 7 in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that Hot5 will be free from conduct or content that violates this Section 7. Weight Watchers may, in its sole discretion, remove or disable access to any content for any reason or for no reason, including if Weight Watchers believes that such content violates these Terms or any other agreement we have with you for use of Hot5.

 

8.   OWNERSHIP AND RESERVATION OF RIGHTS

Weight Watchers reserves all rights not expressly granted in these Terms. Except for the license expressly stated in these Terms, you are not granted any rights in or to Hot5 by implication, estoppel, or other legal theory, and all rights in and to Hot5 not expressly granted in these Terms are hereby reserved and retained by Weight Watchers. Weight Watchers reserves all right, title, and interest to and in all information, materials, and content (including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content) (collectively "App Material"). App Material includes any information, videos, or images delivered by Weight Watchers via a Third Party Service in the course of providing Hot5. App Material is confidential, and you may not disclose Apps Material that you have received in the course of Hot5 or otherwise. App Material is protected in all forms, media, and technologies now known or later developed.

 

Trademarks

The name, trademarks, logos, and any other product, service name, or slogan included in Hot5 are the property of Weight Watchers and may not be copied, imitated, or used (in whole or in part) without Weight WatchersÕ prior written consent. The look and feel of Hot5, including all custom graphics, button icons, and scripts constitute service marks, trademarks, or trade dress of Weight Watchers and may not be copied, imitated, or used (in whole or in part) without Weight WatchersÕ prior written consent. All other trademarks, registered trademarks, product names, and company names or logos mentioned in Hot5 ("Third Party Trademarks") are the property of their respective owners, and the use of such Third Party Trademarks inures to the benefit of each owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute an affiliation by us with such company or an endorsement or approval by such company of Hot5 or its respective products or services.

 

Feedback

Weight Watchers will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas, or other information or materials that you provide regarding Hot5, whether by email, posting through Hot5, or otherwise ("Feedback"). Except as provided in the Privacy Policy, any Feedback you submit is non-confidential and will become the sole property of Weight Watchers. Weight Watchers will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Do not send Feedback if you expect to be paid or want to continue to own or claim rights in your Feedback. Subject to applicable law, Weight Watchers also has the right to disclose your identity to any third party who is claiming that any content posted by you constitutes a violation of their intellectual property rights, or of their right to privacy. Further, you agree not to submit any Feedback that is defamatory, illegal, offensive, or otherwise violates any right of any third party, or breaches any agreement between you and any third party.

 

9.      SUSPENSION AND TERMINATION

Weight Watchers may suspend your license to access or use Hot5 or terminate these Terms at any time, with or without cause, immediately upon notice to you. You may terminate these Terms by cancelling your account through. Weight Watchers reserves the right, but does not undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use Hot5 during suspension or after termination, including by creation of a different account. Weight Watchers may recover its reasonable attorneysÕ fees and court costs from you for such actions. These Terms will remain enforceable against you while your license to access or use Hot5 is suspended.

 

10.    DISCLAIMER

YOUR USE OF HOT5 IS AT YOUR SOLE RISK. HOT5 IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WEIGHT WATCHERS DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, HOT5, THE APP MATERIAL, AND THIRD PARTY TRADEMARKS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, NON-INFRINGEMENT AND CONDITION OF TITLE.

 

11.      NO MEDICAL ADVICE

THE CONTENT AND/OR INFORMATION PROVIDED VIA THE APP DOES NOT CONTAIN OR CONSTITUTE AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE, MEDICAL OPINIONS OR MEDICAL SERVICES, AND THERE IS NO DOCTOR-PATIENT RELATIONSHIP OR THERAPIST-PATIENT RELATIONSHIP BETWEEN WEIGHT WATCHERS AND YOU. YOU ACKNOWLEDGE AND AGREE THAT WEIGHT WATCHERS HAS NEITHER PROVIDED NOR RENDERED ANY medical advice TO YOU. HOT5 IS NOT a substitute for the advice of a medical professional, and the information made available on or through HOT5 should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. HOT5 DOes NOT DIAGNOSE OR IDENTIFY ILLNESSES OR CONDITIONS. If you require medical advice, MEDICAL services, OR THERAPY, you should consult a medical professional DIRECTLY AND NOT THROUGH THE APP.

 

12.    HEALTH NOTICE

HOT5 IS NOT INTENDED FOR USE BY MINORS, PREGNANT WOMEN OR INDIVIDUALS WITH ANY TYPE OF HEALTH CONDITION OR PHYSICAL DISABILITY THAT WOULD MAKE IT UNSAFE OR UNADVISABLE FOR THEM TO ENGAGE IN PHYSICAL ACTIVITY SUCH AS THE FITNESS ACITIVITIES CONTAINED THEREIN. YOU ARE URGED AND ADVISED TO SEEK PROFESSIONAL MEDICAL ADVICE BEFORE BEGINNING ANY EXERCISE PROGRAM OR REGIMEN, particularly if you suffer from high blood pressure or dizziness; have had a stroke; have a heart, lung, liver or kidney condition; or if you have recently been hospitalized. If you are more than 40 pounds overweight, you should not work out at a high intensity level without professional supervision. 

 

13.      Indemnification

At your sole expense, you will defend, indemnify and hold Weight Watchers and its Trainers harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of or resulting from (a) your use of Hot5 or the use of Hot5 by a third party accessing your account, including any infringement of rights of third parties, or (b) your breach of these Terms.

 

14.      LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL WEIGHT WATCHERS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROPERTY, PHYSICAL LOSSES, DEATH OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE APPS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF WEIGHT WATCHERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL WEIGHT WATCHERSÕ TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO HOT5 EXCEED THE FEES PAID BY YOU FOR HOT5 (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE) FOR THE SUBSCRIPTION PERIOD WITHIN WHICH THE EVENT GIVING RISE TO THE DAMAGES/LOSSES OCCURRED.

 

15.    Arbitration

PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY BECAUSE THEY REQUIRE YOU AND WEIGHT WATCHERS TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF.

 

FOR US RESIDENTS ONLY: You and Weight Watchers will arbitrate any dispute, claim, or controversy arising from or related to these Terms or Hot5, except that neither you nor Weight Watchers is required to arbitrate any dispute in which either party seeks equitable and/or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade names, or patents. ARBITRATION PREVENTS YOU AND WEIGHT WATCHERS FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. Arbitration will be conducted confidentially in New York, New York, by a single arbitrator in accordance with the rules of JAMS (or its successor). Except as expressly provided in these Terms, the arbitrator has the authority to grant any remedy that would otherwise be available in court. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the arbitration unless the arbitrator determines to apportion fees and expenses differently. To the fullest extent permitted by applicable law, Whether the dispute is heard in arbitration or in court, NO ARBITRATION OR CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NEITHER YOU NOR WEIGHT WATCHERS will commence against the other a class action, class ARBITRATION, or other representative action or proceeding.

 

16.    REPORTING AND REMOVAL

Hot5 users may report content to Weight Watchers that he/she thinks violates these Terms, and Weight Watchers may remove such content, suspend or terminate the account of the user who posted such content and/or take additional action to enforce these Terms against such user. 

 

In addition, in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Weight Watchers has adopted a policy of terminating, in appropriate circumstances and at our discretion, account holders who are deemed to be repeat infringers. We also may, at our discretion, limit access to the Services and terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. 

 

If you think that anything on or made available through the App infringes upon any copyright that you own or control, you may file a notification with the Designated Agent as set forth below:

Designated Agent: Vlad Margulis

Email Address of Designated Agent:

Hot5@weightwatchers.com

 

Please see 17 U.S.C. å€ 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent that any material or activity is infringing, you may be liable for any damages, including costs and attorneysÕ fees, Weight Watchers or the alleged infringer incurs because we relied on the misrepresentation when removing or disabling access to the material or activity.

Notice for California users

If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

 

17.      Miscellaneous

Governing Law and Dispute Resolution.

For U.S. Residents: These Terms will be governed by and construed in accordance with the laws of the State of New York, without resort to its conflict of law provisions. The state and federal courts located in New York, New York, will have exclusive jurisdiction over any suit in connection with Hot5 or these Terms that is not subject to arbitration, and you and Weight Watchers hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts. Your access to or use of Hot5 will be governed by, construed in accordance with, and enforced under the laws of the State of New York without resort to its conflict of law provisions. If a party initiates any proceeding regarding these Terms, the prevailing party to such proceeding is entitled to reasonable attorneysÕ fees and costs for claims arising out of these Terms.

For Canadian Residents:  These Terms will be governed by and construed in accordance with the laws of the Province of Ontario, without resort to its conflict of law provisions. The provincial and federal courts located in Toronto, Ontario will have exclusive jurisdiction over any suit in connection with the Apps or these Terms, and you and Weight Watchers hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts. Your access to or use of the Apps will be governed by, construed in accordance with, and enforced under the laws of the Province of Ontario without resort to its conflict of law provisions.

Assignment. You may not assign, delegate or transfer these Terms or any right, title, interest or obligation hereunder without the prior written consent of Weight Watchers. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. Weight Watchers may assign these Terms without your prior written consent. These Terms will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties in the event of an assignment or other transfer made consistent with the provisions of these Terms.

 

Electronic Communications. You agree to receive electronically all current and future notices, disclosures, communications and information and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.

 

Force Majeure. Weight Watchers will not be liable for any loss or damage arising from any event beyond its reasonable control, including, but not limited to, flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction. 

 

Severability. If any provision of these Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. 

LanguageThe parties hereto confirm that it is their wish that this Agreement as well as other documents relating hereto, including notices, have been and shall be drawn up in the English language only.  Les parties aux prŽsentes confirment leur volontŽ que cette convention de mme que tous let documents, y compris tous avis, sÕy rattachant, soient rŽdigŽs en langue anglaise seulement.

 

Survival. Notwithstanding any terms to the contrary in these Terms, Sections 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 will survive any termination of these Terms.

 

18.    NOTICE REGARDING APPLE

Notwithstanding any terms to the contrary in these Terms, the following additional terms will apply to the download of Hot5 for use on the iPhone, iPod Touch or iPad:

You and Weight Watchers acknowledge that the terms are solely between you and  Weight Watchers, and not with Apple, Inc. ("Apple"), and that Weight Watchers, not Apple, is solely responsible for the Service, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You acknowledge and agree that the availability of Hot5 is dependent on the third party from which you received Hot5, e.g., the Apple iPhone App Store ("App Store"). You agree to pay all fees charged by the App Store in connection with Hot5 (if any). You further acknowledge that the usage rules for Hot5 are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service ("Apple Usage Rules") as of the date you download Hot5. In the event of any conflict between the terms and conditions of the Apple Usage Rules and the terms and conditions of these Terms, the terms and conditions of the Apple Usage Rules will govern if they are more restrictive.

 

Scope of License

The license granted to you is limited to a non-transferable license to use Hot5 on any iPhone, iPod Touch or iPad that you own or control as permitted by the Apple Usage Rules.

 

Maintenance and Support

Weight Watchers is solely responsible for providing maintenance and support services with respect to Hot5. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Hot5.

 

Warranty

You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to Hot5. In the event of any failure of Hot5 to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for Hot5 by you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Hot5. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Weight Watchers. However, you understand and agree that, in accordance with these Terms, Weight Watchers has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to Hot5, except those implied by law.

Product Claims

You and Weight Watchers acknowledge and agree that as between Apple and Weight Watchers, Weight Watchers, not Apple, is responsible for addressing any of your claims or any third party claims relating to Hot5 or your possession and/or use of Hot5, including, but not limited to (a) product liability claims, (b) any claim that Hot5 fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.

 

Intellectual Property Rights

You and Weight Watchers acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third partyÕs intellectual property rights, Weight Watchers, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.

 

Legal Compliance

You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. 

 

Developer Name and Address

Any end-user questions, complaints or claims with respect to Hot5 should be directed to:


 

 

Weight Watchers

Hot5@weightwatchers.com

 

Third Party Beneficiary

The parties acknowledge and agree that Apple, and AppleÕs subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of these Terms against you as a third party beneficiary thereof.