LICENSING AGREEMENT
AND TERMS OF USE
Thank you for purchasing online materials from Peak Flow. We strive to help you perform at your highest level by leveraging body and mind connections. The following terms constitute the agreement between You, as licensor of our online course materials, and us at Peak Flow.
This License Agreement (the “Agreement”) governs your use and acquisition of the materials you have downloaded, or will downloaded, from Peak Flow’s website (the “Materials”). By accepting this agreement, you agree to its terms. If you do not agree with these terms and conditions, you must not accept this agreement and may not use the Materials.
1) CONTRACT BETWEEN YOU AND PEAK FLOW
This Agreement and Terms of Use (the “Agreement”) form a legally binding agreement between you and Peak Flow, and governs your access and use, and our provision of, the Materials and any other technology, content, items, or other materials provided by or through Peak Flow. By accessing or using the Materials, you agree to be bound and abide by these terms. Supplemental term and conditions may apply to certain Peak Flow services, such as other materials you have not yet licensed, in-person services, or other items related to Peak Flow. Any supplemental terms will be disclosed to you in connection with those other activities and will apply and govern other such activities.
2) DEFINITIONS
“Licensor” means Peak Flow. “Materials” comprise all software, digital content, written work, video and/or audio recordings, and any other item You have downloaded from or viewed on Peak Flow’s website. “You”, “Your”, or “Licensee” shall refer to you or any company or other legal entity for which you are accepting this Agreement, and any affiliate of yourself or any other such company or entity. “Authorized Users” shall refer to those persons or entities you identified in purchasing this license to use the Materials.
3) YOUR RIGHTS
3.1. In exchange for the price you have paid, Peak Flow hereby grants you an irrevocable license to use the Materials for your own personal non-commercial use. Peak Flow retains all rights in the Materials, and retains full control over their distribution, and any applicable copyrights, trademarks, or intellectual property contained therein.
3.2. A license confers no title or ownership in the Materials and should not be construed as a sale of any rights in the Materials.
3.3. You are responsible for your compliance with this Agreement for the duration of the Subscription Term.
3.4. You may not make the Materials available to anyone other than Authorized Users. You may not sell, resell, rent, or lease the Materials. You may not interfere with or disrupt Peak Flow’s business practice of making the Materials available only to those who purchase a license. You may not attempt to gain, or help others attempt to gain, unauthorized access to the Materials.
4) PEAK FLOW’s INTELLECTUAL PROPERTY; LICENSE LIMITED
4.1 Ownership – You acknowledge and agree that the Materials, and any logos, names, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation any copyrights, patents, trademarks, proprietary or other rights contained therein, related thereto, or otherwise arising therefrom are owned by Peak Flow. You acknowledge and agree that the source and object code of certain Peak Flow Services (such as our online tools) and the format, directories, queries, algorithms, structure and organization of the same are the intellectual property, proprietary and confidential information of Peak Flow and/or its affiliates, licensors and suppliers. You expressly agree that you will do nothing inconsistent with Peak Flow’s ownership of the Materials, and that you gain no rights,
title, or interest in or to any of Peak Flow’s Materials, or any goodwill associated therewith, except as stated in this Agreement or any executed written agreement between you and Peak Flow. In addition, except as expressly set forth in these Terms, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of Peak Flow. or any third-party.
4.2. Limited License – For any Peak Flow Materials which enable you to use any software, content, or other materials owned or licensed by Peak Flow, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license solely to access and use the Materials any related software or content for your personal non-commercial use only.
4.3. Restrictions – You are prohibited from, and expressly agree that you will not: (i)
circumvent or disable any content protection system, digital rights management technology, user and/or country limitations or any other technology used with the Materials; (ii) decompile, reverse engineer, disassemble or otherwise reduce any Peak Flow Services to a human-readable form; (iii) remove identification, warnings, disclaimers, disclosures, copyright or other proprietary notices in or on the Materials; (iv) access or use any of the Materials in an unlawful or unauthorized manner or in a manner that suggests an association with our content, products,
services or brands, unless you have an executed agreement with us that allows for such activity; (v) use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any of the Materials except as expressly authorized in these Terms or as part of the Materials provided to you; (vi) introduce a virus or other harmful component, or otherwise tamper with, impair or damage any of the Materials, or interfere with any person or entity’s use or enjoyment of any of Peak Flow’s Services; (vii) access, monitor, or copy any element of the Materials using a robot, spider,
scraper or other automated means or manual process without our express written permission; or (viii) sell, resell, or make commercial use of the Materials, unless you have an executed agreement with us that expressly allows for such activity. You may not access or use of the Materials in violation of United States, Canadian or other applicable export control and economic sanctions requirements. By accessing or otherwise using the Materials, content or software through Peak Flow, you represent and warrant that: (ix) your access to and use of the Materials will comply with any and all requirements in these Terms; (x) you are not located in a country that is subject to a U.S. or Canadian government embargo, or that has been designated by
the U.S. or Canadian government as a terrorist supporting country, and that you are not listed on any U.S. or Canadian government list of prohibited or restricted parties; and (xi) you will comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of the Materials.
5) DISCLAIMER OF WARRANTIES
You acknowledge and agree to accept the Materials “As Is” and “As Available”, with all faults, errors, and omissions, and without any performance assurances or guarantees of any kind. Peak Flow expressly disclaims any and all warranties, conditions, and representations, express or implied, regarding the Materials, including without limitation any implied warranties of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, accessibility, and warranties arising from course of dealing, usage, or trade practice. Peak Flow makes no guarantee that the Materials will meet your unique requirements or that they will be uninterrupted or error free. Peak Flow makes no guarantee or warranty as to the particular health
and wellness goals, results, benefits or outcomes that may be achieved or obtained through use of the Materials. You will not hold Peak Flow responsible for any loss or damage that results from your access to or use of the Materials, including but not limited to any loss or damage to any of your computers or data, or personal injury to yourself or others.
6) NO MEDICAL ADVICE
6.1. Although Peak Flow provides the Materials with your health and safety in mind, each individual has their own needs and limitations. It is therefore critical that you consult your physician or other licensed healthcare provider for necessary medical or appropriate care, follow all safety and other instructions provided by Peak Flow, and obtain appropriate authorization before accessing or using any of the Materials, especially if you are prone to injuries, are pregnant or nursing, are under 18 years of age, or have any other unique or special medical conditions. All Peak Flow Materials are provided for entertainment and informational purposes only and are not intended to diagnose any medical or healthcare condition, replace the advice of a licensed healthcare professional, or provide any medical advice, opinion, diagnosis, treatment,
or guarantee. The Materials should not be relied upon when making medical or other important healthcare decisions.
6.2. Any individual results using the Materials may vary. The testimonials featured on our websites may have used more than one Peak Flow product, or expanded upon Peak Flow’s Materials to achieve their desired results.
6.3. Any metrics, values and figures presented or displayed in the Materials are estimates only and may be inaccurate. This includes without limitation nutritional values, timing suggestions or schedules, or any other numerical benchmark listed in the Materials. You must only use such metrics, values and figures for general reference only and always consult your physician or other licensed healthcare provider for necessary or appropriate care and advice.
6.4. Peak Flow provides safety warnings, along with care and use instructions for certain exercises, equipment, products, and services. You must always carefully read and follow all such warnings and instructions prior to beginning any exercise, or use of any equipment, products, or services. Failure to read and follow any applicable warnings and instructions could result in serious injury to you and others.
6.5. You must always adhere to any minimum age restrictions and limitations related to any of Peak Flow’s Materials.
6.6. You expressly acknowledge and agree that your access, use and/or involvement with any of Peak Flow’s Materials may involve potentially dangerous and physical activities that may lead to personal and/or bodily injury. You hereby acknowledge and willingly accept these risks and agree to unconditionally release and hold Peak Flow harmless from and against all claims, suits, damages, losses, causes of action, costs, expenses or liability arising out of or related to your access, use and/or involvement with any of the Materials.
7) INDEMNIFICATION, LIMITATION OF LIABILITY, AND DISPUTES
7.1. Indemnification – You agree to indemnify and hold Peak Flow, its shareholders, officers, directors, employees, agents, and suppliers harmless from and against any claim, action, demand, loss, suit or damages (including attorneys’ fees) made or incurred by any third party arising out of or relating to your improper use of any of the Materials, your violation of these Terms, or your violation of any rights of a third party.
7.2. Limitation of Liability – To the maximum, extent permitted by law, in no event shall Peak Flow or any of its shareholders, officers, directors, employees, agents, and suppliers be liable for special, compensatory, indirect, incidental, consequential, or exemplary damages, lost profits, lost data or confidential or other information loss of privacy , costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability and/or if we were advised of such damages or of any advice or notice given to Peak Flow arising out of or in connection with your use of the Materials. This limitation shall apply regardless of whether the
damages arise out of breach of contract, negligence, tort, or any other legal theory or form of action.
7.3. Choice of Law – This Agreement shall be governed by the laws of the state of New York, and any applicable federal laws. Any legal dispute arising from this Agreement shall be resolved in the courts of general jurisdiction of the state of New York.
8) MISCELLANEOUS
8.1. These terms contain the entire agreement, and supersede all prior and contemporaneous understandings between You and Peak Flow regarding the Materials.
8.2. In the event of any conflict between this Agreement and any other agreement you may have with Peak Flow, the terms of that other agreement will prevail only if this Agreement is specifically identified and declared to be overridden by such other agreement.
8.3. Peak Flow’s failure or delay in exercising any right, power, or privilege under this
Agreement shall not operate as a waiver thereof.
8.4. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
8.5. Peak Flow operates its website and distributes its Materials in the United States. Those who choose to access the Materials from locations outside the Untied States do so at their own initiative and are responsible for compliance with applicable local laws. Peak Flow makes no representations or warranties that the Materials are appropriate or available for use at locations outside the United States.
8.6. Except as set forth in these Terms, only you and Peak Flow may enforce these Terms; no third party shall be entitled to any rights hereunder.
8.7. The provisions of this Agreement which by nature should survive termination of this Agreement shall survive such termination.
8.8. This Agreement constitutes the final, exclusive, and complete agreement between you and Peak Flow regarding the Materials.
