EndoGusto – Software as a Service (SaaS) Terms and Conditions  

EndoGusto is offering an online sports coaching platform as a Service. These SaaS Terms and Conditions of Use (“Terms of Use”) together with the Order Form (where applicable) is a legal agreement (“Agreement”) between you (Business Owner, Coach or Athlete), or in the event that you represent, or are using the Website on behalf of, a business or other entity, that business or entity (in either case, “you”) and EndoGusto, (hereinafter “EndoGusto”, “Supplier”, “we”, “us”, or “our”). These Terms of Use govern your Account (as defined herein) and your use of the Services, accessed and selected, by visiting the internet accessible coaching platform, under the name EndoGusto. “Services” means EndoGusto’s hosted internet accessible online coaching management services, under the name EndoGusto, made available to you on a subscription term basis under the Agreement at http://app.endogusto.com or any other website address as may be notified to you (“Portal”). If you are a business or other entity, the individual entering into these Terms of Use on your behalf hereby represents that he/she is an employee or agent of such business or other entity and has authority to enter into these Terms of Use on the company’s behalf.

NOTICE: PLEASE READ THE FOLLOWING TERMS OF USE BEFORE PROCEEDING. BY CLICKING “I ACCEPT” DURING ACCOUNT REGISTRATION, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ACCESS OR USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS OF USE AND AGREE TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU CANNOT REGISTER FOR AN ACCOUNT OR USE THE SERVICES. REGISTRATION BY “BOTS” OR OTHER AUTOMATED METHODS ARE NOT PERMITTED. SUPPLIER’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THIS AGREEMENT IS CONSIDERED AN OFFER BY SUPPLIER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT.

We reserve the right, at any time, to modify the Services by making the modification available on the Website or Portal or by providing other notice to you. Any modification will be effective immediately upon posting on the Website or Portal or other such notice. You will be deemed to have agreed to such modification through your continued use of the Services.

1. Definitions. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted. 

2. No Responsibility for Coaches. As an Athlete, you acknowledge that you are solely responsible for your selection of any coach or other third-party you choose to assist you with your coaching, training, exercise, or fitness (your “Coach”) and for any advice, coaching, training, or other services you receive from that Coach (“Coaching Services”). We are not responsible for any Coaching Services, whether or not the Coach uses the Services to assist him/her in providing you with any Coaching Services. We have no control over, are not responsible for, and do not provide support or maintenance for, any Coach and/or Coaching Services. Separate and apart from these Terms of Use, your access to and use of any Coaching Services may also be subject to any other agreement you have entered into (or enter into) with your Coach or Coaching Business in addition to this Agreement (a “Coaching Agreement”). Notwithstanding any such Coaching Agreement, these Terms of Use will continue to apply to your use of all Services. Any Coaching Agreement will apply separately to any Coaching Services you receive from your Coach and are separate and independent from the Services you may receive from us under these Terms of Use.

3. Account Types. We designate various types of accounts (Business Owner Account, Coach Account and Athlete account, each an “Account”) that provide different functionalities to different users of the Services.

3.1 A “Business Owner Account” allows you to access and use the Account for the purposes of providing Coaching Services to Athlete Accounts that have signed up for your Coaching Services. It also allows for the addition of Coach Accounts who assist your Business in providing Coaching Services. The Business Owner account also recognizes you, the Business Owner, as an athlete and allows you to self-coach yourself. The number of additional Athletes and Coaches you are able to add is dependent on your subscription plan.

3.2 A “Coach Account” allows you to access and use the Account for the purposes of providing Coaching Services as a member of the Business Account. The Business Owner Account has the sole authority to assign Athletes to your account and to receive Coaching Services. The Coach Account recognizes you, the Coach, as an athlete and allows you to self-coach yourself. The number of additional athletes assigned to you by the Business Owner to offer Coaching Services is dependent on the Business Owner’s subscription plan.

3.3 An “Athlete Account” allows you to access the Account as designated by the Business owner and/or Coach through the Portal assigned to the Business Owner Account. You will be linked both to the Business Account and a respective Coach Account for the Coach that has been assigned to you for your agreed upon Coaching Services. Any applicable Coaching Agreement is solely between Business Owner and/or Coach and Athlete. EndoGusto shall not be responsible, nor have any liability whatsoever, under any Coaching Agreement.

4. Account Registration; Account Settings; Passwords.

Age Restrictions. You may not create an Account unless you are 18 years of age or older. If you are a parent or guardian of a child, then you may create an Account and allow your child to access that Account and the Services under your direct supervision. You will be solely responsible for all access to and use of the Services and that Account by your child. 

Your Account Information. By submitting a Registration form, you represent to us that: (1) you meet any age restrictions for the Services, and (2) the information you have provided on your Registration (“Account Information”) is true, accurate, current and complete. You will maintain and promptly update your Account Information using the functionality provided through the Services to keep it true, accurate, current and complete.

Passwords for Accounts. If you register for an Account, you are responsible for maintaining the confidentiality of your password and you are not permitted to share or disclose your password to anyone else. You will be solely responsible for the activities of anyone accessing the Services using any password assigned by you, even if the individual is not, in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it, using the functionality provided in the Services, and notify us of a possible breach of Account at info@endogusto.com

Permitted Uses. Use of Athlete Accounts is limited to your own personal, noncommercial use only. Use of Business Owner and Coach Accounts is for the purpose of using the Portal and the Services as a tool to assist you in providing Coaching Services to individual users who have an Athlete Account that is linked to the Business Owner Account, as well as in self-coaching. 

Your Obligations. You agree to: (a) provide reasonable information and assistance to EndoGusto to enable the Services to be rendered; (b) comply with all applicable local, state, provincial, national, federal and foreign laws in connection with its use of the Services; (c) notify EndoGusto immediately upon becoming aware of any unauthorized use of the Services; and (d) collect, input, update all user data and material provided for use in connection with the Services. 

5. Payment. 

Only Applicable to Business Owner Accounts. Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars (USD) and, unless explicitly provided otherwise herein, are non-refundable.

The fees set forth in the applicable Order or ordering interface are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added or other taxes now in force or enacted in the future, and you shall pay any such tax (excluding taxes on Supplier’s net income) that Supplier may be required to collect or pay now or at any time in the future with respect to such fees. Unless otherwise set forth in the Order, you shall pay all Supplier’s undisputed invoices within 5 days after you receive said invoice. Payment of the amounts due to Supplier shall be made in accordance with the payment schedule set forth on the Order or other ordering interface.

You authorize EndoGusto or a third-party payment processor to charge all sums for the Orders you enter into, orders that you make and any level of Services you select as described in this Agreement or published by EndoGusto, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, a third-party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

You are required to pay the fees for your Business Owner Account for the term of the plan selected in your Registration prior to obtaining access to your Account. All subscription fees will be payable in advance, unless otherwise specified in your Registration. All plans automatically renew, unless you terminate your Account within the time specified in your Registration. You are free to terminate your Business Owner Account at any time. EndoGusto will not provide any refund upon termination, but you will continue to have access to your Account, after you have terminated your Business Owner Account until the expiration of your plan’s current term.

Only applicable to Athlete Accounts. If you have an Athlete Account linked to a Business Account, the responsibility for payment of the fees, if any, for your access to your Account will be as specified by the terms of your applicable Coaching Agreement. EndoGusto does not directly charge Athlete Accounts for access to the Portal and/or Services.

Recurring payments. The Services may include automatically recurring payments for periodic charges (“Subscription”). The price and restrictions of any Subscription will be set forth in the applicable Order. If you activate a Subscription, you authorize Supplier to periodically charge, on an on-going basis and until cancellation of your Business Owner Account, all accrued sums on or before the payment due date for the accrued sums dependent on your subscription plan. The “Subscription Billing Date” is the date when you purchase your first Subscription. Your Account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next Subscription period. The Subscription will continue unless and until you cancel your Subscription, or we terminate it. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide during your registration and activation of your Subscription (or to a different payment method if you change your payment information). 

6. Term; Termination; Suspension.

Term. The term of this Agreement will commence the first date that you access the Services (“Effective Date”). We will provide the Services to you for your particular Account commencing upon the completion of the Registration for your Account and will be ongoing unless you request cancellation of your Account or your Account is terminated before the end of the term as permitted in these Terms of Use. 

Termination by Us. We reserve the right to terminate your access to your Account regardless of the type of Account you have if you fail to comply with these Terms of Use, including, without limitation, failing to comply with the password restrictions or providing false Account Information. We will not provide any refund if your Account is terminated under this Clause. If at any time we delete a Business Account due to non compliance with these Terms of Use or for any other reason, all associated Coach and Athlete Accounts will also be terminated.

Termination by Business Owners. If you have an Athlete Account linked to a Business Account, the Business Owner has the right to terminate your Account at any time. We have the right to terminate your Account after receiving instructions from the Business Owner that you are linked to. Please refer to your Coaching Agreement that you may have accepted regarding your Account for additional information about the circumstances under which the Business Owner Account that you are associated with may terminate your particular Account. If a Business Owner terminates an Athlete or Coach Account related to its business, neither Account will continue to have access to the Portal and/or the Services. In order to regain access to the Portal and/or Services, all Coach and Athlete Accounts need to be connected to a Business Account. This applies to all Accounts. 

Termination by you. If you notify us that you wish to terminate your Account, regardless of the type of Account you have, we will promptly take such action as is necessary to terminate your Account. If you have an Athlete Account linked to a Business Owner Account, and you wish to disconnect from said Business Account then your Account shall be completely deleted and access to the Portal and/or Services will cease immediately.

Other Termination or Modification. In addition to the termination rights above, we have the right to terminate the Services at any time or to modify or change the Services or to eliminate any or all of the Services.

Effect of Termination. Upon termination of this Agreement: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be authorized to access your Account or the Services; (c) if your Business Owner Account is terminated, you must pay us any unpaid amount that was due prior to termination, along with all payment obligations accrued prior to termination.

Suspension – General. Without limiting our right to terminate your Account, we may also immediately and indefinitely suspend your access to the Services, including, without limitation, all of your Content, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms of Use or applicable law or upon any other conduct we deem to be inappropriate or detrimental to the Services, us, or any other customer or user.

7. No Medical Advice. THE CONTENT WE PROVIDE THROUGH THE SERVICES, INCLUDING ALL TEXT, GRAPHICS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS OR THIRD-PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF: (A) THE ADVICE OF A/YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS; (B) A VISIT, CALL OR CONSULTATION WITH A/YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS; OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. OUR CONTENT DOES NOT CONSTITUTE MEDICAL ADVICE. SHOULD YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, PLEASE CALL OR SEE A/YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL A/YOUR PHYSICIAN IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED IN THE SERVICES, AND YOU SHOULD NOT USE OUR CONTENT FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND US. ENDOGUSTO IS NOT A HEALTHCARE PROVIDER OR BUSINESS ASSOCIATE OF A HEALTHCARE PROVIDER AND IS NOT SUBJECT TO THE PRIVACY RULE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).

8. Privacy Policy Consent.

By agreeing to the Terms of Use, you also agree to comply with the terms of our online privacy policy available on the Website (our “Privacy Policy”), upon your registration, which is incorporated into these Terms of Use. Before using the Website or the Services, please carefully review our Privacy Policy. All personal data you provide to us as a result of your use of the Website, Services, or any Account will be handled in accordance with these Terms of Use and our Privacy Policy. 

9. Content.

User Content. The Services may allow you to post, upload, transmit, or otherwise make available and provide (“post”) Content on the Services, including, without limitation, text, graphics, workout and other data, or other materials. The Content you and other users post is referred to as “User Content” in these Terms of Use. The User Content that you post is referred to as “Your Content” in these Terms of Use.

Prohibited Content. You affirm, warrant and represent that you will not post Content on or via the Services that:

-is patently offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

-harasses or advocates harassment of another person;

-exploits people in a sexual or violent manner;

-contains nudity, violence, or offensive subject matter;

-provides any telephone numbers, street addresses, last names or email addresses of anyone except yourself;

-promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

-violates any intellectual property or other proprietary right of any third-party, including Content that promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protected devices, or providing pirated music or links to pirated music files;

-involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging or “spamming”;

-contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);

-furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;

-solicits passwords or personal identifying information for commercial or unlawful purposes from other members;

-involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or

-includes a photograph of another person that you have posted without that person’s consent or, in the case of children under the age of thirteen (13), parental consent, or otherwise constitutes an invasion of an individual’s privacy or infringement of publicity rights; or contains a virus or other harmful component.

Responsibility for User Content. You are responsible for all Content you upload to your Account and the Services. We are not responsible for and do not control User Content, and, therefore, we do not guarantee the accuracy, integrity or quality of any User Content. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, settings, viewing errors, or any loss or damage of any kind incurred as a result of the use of any User Content.

User Content Disclaimer. We are under no obligation to edit or control User Content that You or other Users post or publish, and will not be in any way responsible or liable for User Content. We may, however, at any time, and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Services, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against EndoGusto with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Services.

Ownership of Your Content. We do not claim ownership rights in your Content. Subject to the non-exclusive license contained in the following paragraph, and the rights of Business Owners, if applicable, you own and will retain any and all intellectual property rights that you may have in your Content.

Limited User Content License Grant. By providing User Content to or via the Services, you grant us a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, for providing the Services as described in this Agreement. 

Special Notice to Holders of Athlete Accounts. If you have an Athlete Account linked to a Business Account, then the Business Owner Account, and subsequently assigned Coach Account linked with your Account has the right to access, view, modify, add, and delete your Content. By connecting your Athlete Account to a Business Account and subsequently assigned Coach Account, the rights you grant to us include the right to allow the Business Owner and/or Coach Accounts, with whom your Account is linked, a license to copy, modify, view, add and delete your Content.

Access to Your Training Content Following Termination. Following Termination of any type of Account, each User will no longer have access to any of the Content associated with that specific account.

Your Warranties Regarding Your Content. By uploading your Content to the Portal and/or the Services, you represent and warrant that (1) you own all right, title and interest in your Content, or otherwise have the right to grant the license set forth in this Section, and (2) the Content does not violate the intellectual property right, privacy rights, publicity rights, or any other rights of any third-party.

10. Ownership of Website and Content.

Ownership of Intellectual Property. EndoGusto and its licensors retain all intellectual property rights in and to the Services and its components, including the source code, Documentation, Portals, URLs, appearance, structure, organization, preparatory design material, and all other elements of the Services (“Materials”). All Materials in the Services are the property of Supplier or its third-party licensors. Other than the right to use the Services for the Term provided in this Agreement, nothing in this Agreement grants you any right in the Services. Supplier reserves all rights to the Materials not granted expressly in this Agreement. To the extent you provide us with any feedback relating to the Services (including feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), we will own all right, title and interest in and to such Feedback (and you hereby make all assignments necessary to achieve such ownership). You shall report promptly to EndoGusto any third-party claims served on you relating to the intellectual property rights in the Services or the Documentation.

Services Access Rights. Subject to your compliance with the terms and conditions set forth herein, EndoGusto hereby grants you a non-exclusive, non-assignable, limited right to access and use the Services solely for your personal use if you hold an Athlete Account, or if you have a Business Owner or Coach Account as a tool to better provide your Coaching Services, and as set forth in the applicable Order of your Account, during the term of the applicable Subscription. The foregoing license is subject to these Terms of Use and does not include the right to use any data mining, robots or similarly automated means or methods to access any Content on the Website. This access right is revocable by EndoGusto at any time without notice and with or without cause.

11. Restrictions. 

You have no right to access or use the Services for any purposes except as may be otherwise expressly set forth in this Agreement. All use of the Services must be only as provided in this Agreement and only in accordance with EndoGusto’s applicable Documentation. You shall not and shall not enable or assist any third-party to: (a) modify, alter, adapt, copy, translate, perform and display or create derivative works based on the Services or proceed to any action that may be properly characterized as copyright infringement by applicable law; (b) decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code, object code, or underlying structure, ideas, or algorithms of the Services; (c) merge or bundle the Services with other software; (d) except as expressly permitted under this Agreement sell, resell, license, lease, publish, display (publicly or otherwise), distribute, rent, lease or otherwise transfer or by any means make available, either directly or via another reseller, to a third party the Services or include the Services in a service bureau, time-sharing, or equivalent offering; (e) duplicate, copy or reuse any portion of the HTML/CSS, JavaScript, or visual design elements or concepts (including the look and feel) of the Services; (f) publicly disseminate information from any source regarding the performance of the Services or otherwise conduct any benchmark or stress tests; (g) access, store, distribute or transmit any viruses, worms, Trojan horses, or other harmful code that in EndoGusto’s sole discretion, affects the Services; (h) modify, disable or compromise the integrity or performance of Services, data or EndoGusto’s systems (including probing, scanning or testing the vulnerability of any Supplier system or network that hosts the Services; (i) tamper with or hack EndoGusto’s systems, circumvent any security or authentication measures, or attempt to gain unauthorized access to the Services, related EndoGusto systems, networks or data; (j) decipher any transmissions to or from the servers running the Services; (k) overwhelm or attempt to overwhelm EndoGusto’s infrastructure by imposing an unreasonable volume of load on Our system that consumes extraordinary resources (CPU’s, memory, disk space, bandwidth etc); (l) interfere or attempt to interfere in any manner with the proper functioning of the Services; and (m) include any material during the course of its use of the Services that is unlawful, harmful, defamatory, infringing, facilitates illegal activity, harassing, depicts sexually explicit images and/or causes damage or injury to any person or property. Without prejudice to EndoGusto’s other rights and remedies, we reserve the right, without liability to you, to disable your access to any material in the event that you breach the restriction provisions of this clause. 

12. Trademarks.

Ownership of Trademarks. The trademarks and service marks used or displayed on the Website (“Trademarks”) are registered and unregistered trademarks of EndoGusto and its licensors or affiliates. Your access to the Website does not constitute a license to use any Trademarks and you may not use any Trademarks displayed on the Website without the prior express written consent and permission of EndoGusto or the trademark owner.

Trademark License for Business Owner Accounts. If you have a Business Owner Account, during the term of these Terms of Use, we grant you a limited, non-exclusive, non-sublicensable, personal license to use the Trademarks “EndoGusto,” “EndoGusto.com,” “Powered by EndoGusto,” and any logos or designs we provide containing the foregoing (“Licensed Marks”) solely to promote your training and coaching services to actual and potential users of the Portal, Services and/or Website. Your use of any Licensed Marks will be subject to any trademark usage instructions we may provide you from time to time. All of your use of the Licensed Marks inures to our benefit and you will acquire no rights in the Licensed Marks nor challenge or contest our rights in the Licensed Marks or any other Trademarks. This license will terminate immediately upon termination of your Business Owner Account for any reason. Upon termination, you will immediately cease using the Licensed Marks, destroy any materials containing the Licensed Marks and delete any references to the Licensed Marks on your website.

 13. Confidential information 

During the Term, in connection with this Agreement, each party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) confidential or proprietary materials and information of the first party (“Confidential Information”). All materials and information disclosed by Disclosing Party to Receiving Party under this Agreement and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the Receiving Party reasonably should have known was the confidential information of the Disclosing Party, will be considered “Confidential Information,” for the avoidance of doubt, the Services, all pricing information and terms of this Agreement, are Confidential Information of Supplier. Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party without the prior written consent of the Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated under this Agreement. The obligations in this section will not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (c) is disclosed to Receiving Party by a third-party without restriction, or (d) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including all copies and extracts thereof. Notwithstanding the foregoing, (i) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third-parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement and (ii) all Feedback be solely, as between the parties, Confidential Information of Supplier.

14. Third-Party Websites.  

When you visit or log in to our website, cookies and similar technologies may be used by our online data partners or vendors to associate these activities with other personal information they or others have about you, including by association with your email or home address. We (or service providers on our behalf) may then send communications and marketing to these email or home addresses. You may opt out of receiving this advertising by visiting https://app.retention.com/optout.

Third-Party Services and Linked Websites. EndoGusto may provide tools through the Services that enable you to export information, including User Content, to third-party services, including through features that allow you to link your Account on EndoGusto with an account on a third-party service or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that EndoGusto may transfer that information to the applicable third-party service. Third-party services are not under EndoGusto’s control, and, to the fullest extent permitted by law, EndoGusto is not responsible for any third-party service’s use of your exported information. The Services may also contain links to third-party websites. Linked websites are not under EndoGusto’s control, and we are not responsible for their content.

Third-Party Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.

15. Support.

We may provide you with support for your Account (“Support”) via the following methods, which may include, without limitation: the Website (contact form); email; and via the Services. 

We will use commercially reasonable efforts to respond to Support requests within 48 hours after the request is placed. Support is available from 9:00 a.m. to 5:00 p.m. EST  on Monday through Friday, excluding holidays, provided that we do not guarantee any level of Support and may change our Support practices at any time.

16. Warranties; Disclaimer.

Each party warrants that: (a) it is a validly existing and duly incorporated company in accordance with respective local laws; (b) it has full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its the terms of this Agreement; (c) it has taken all necessary corporate action to authorize the creation, execution, delivery and performance of this agreement, and to observe and perform the provisions of this agreement in accordance with their terms; and (d) it has all licenses, authorisations, consents, approvals and permits required by applicable Laws in order to perform its obligations under this Agreement.

EndoGusto further warrants that throughout the term of this Agreement, when utilized in accordance with their current User Documentation and under normal use and circumstances, the Services (i) will be provided in a manner consistent with industry best practices and standards applicable to the provision thereof (ii) will operate in material conformance with their User Documentation under normal use and circumstances and (iii) shall be accessible to you and be adequately functional during the subscription term.

You warrant to EndoGusto that you: (i) will refrain from using the Services for posting of information that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking regulations, and (ii) have all necessary approvals and authorizations to convey all licenses to EndoGusto hereunder.

Except as set forth in the preceding paragraphs of herein Section 16, EndoGusto makes no representations or warranties or conditions of any kind concerning the Services, the products or their use, accuracy, and function and shall not be liable in any manner for any representation or warranty or condition of any kind. Specifically, EndoGusto disclaims all warranties, express, implied, or statutory, regarding the Services, the Software, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the Portal and the Services shall be deemed a warranty or guarantee for any purpose or give rise to any EndoGusto liability of third parties whatsoever. You acknowledge that you relied on no warranties or statements other than as may be set forth herein. The limitations, exclusions, and disclaimers in this section apply to the fullest extent permitted by law. EndoGusto does not disclaim any warranty or other right that EndoGusto is prohibited from disclaiming under applicable law.

17. Limitation of Liability.

 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ENDOGUSTO AND ITS AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ENDOGUSTO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ENDOGUSTO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU PAID TO ENDOGUSTO FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM OR (B) $100.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

18. Indemnity.  

You will defend, indemnify, and hold EndoGusto harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with: (a) your breach of any laws or regulations (including with respect to privacy); (b) your use of the services; and (c) violation of any agreements it has with any of your Coaching Agreements.

19. Notices. 

Any notice, request, instruction or other document to be given under this Agreement to any party hereunder shall be in the English language, in writing, and sent by first class mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on Your account or, to Supplier at info@endogusto.com (or such other address as may be properly specified by written notice hereunder). Email notice will be permitted by Supplier if sent to your email address.

20. Modification. 

EndoGusto reserves the right to change this Agreement on an ongoing basis at any time upon seven days’ notice. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies Your rights or obligations, EndoGusto may require that you accept the modified Agreement in order to continue to use the Services. You must accept the modifications to continue access or use of the Services. If you object to the modifications, its exclusive remedy is to cease any and all access and use of the Services. If the effective date of the modifications is during the term of a Subscription and you object to the modifications, then (as its exclusive remedy), you may terminate its affected Subscription upon notice to EndoGusto, and EndoGusto will refund to you any fees prepaid for use of the Services for the terminated portion of the term of the applicable Subscription. To exercise this right, you must provide EndoGusto with notice of its objection and termination within 30 days after EndoGusto provides notice of the modifications. Material modifications are effective upon Your acceptance of the modified version of the Agreement. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 20, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose. 

21. Entire Agreement. 

It is hereby declared that this Agreement constitutes the entire Agreement and contains the entire understanding between the parties hereto and with respect to the matters referenced to herein. No terms other than those expressly set out herein are deemed to be implied herein. No amendment or modification of this Agreement shall be valid and binding unless made and confirmed in writing or otherwise signed by the parties hereto. 

22. Severability. 

In the event of any one or more provisions of this Agreement becoming invalid or unenforceable it shall not affect any of the other provisions herein of becoming invalid and unenforceable, and such other provisions shall be deemed to remain in full force and effect.

23. Waiver.

No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this agreement.

24. Authentic text. 

The English language text of this Agreement shall be the only authentic text.

25. Force Majeure.

Neither party is liable for any failure or delay in performance due to any cause beyond its control and has no obligation arising out of the abnormal use of any items, site conditions nonconforming to specifications, or any cause external to any item, including but not limited to accident, acts of nature, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay.

26. Assignment. 

You may not assign, delegate or otherwise transfer your Account or your rights or obligations under these Terms of Use. Upon written notification, EndoGusto may assign or transfer this Agreement in whole or part, and all or part of the payments, to the extent that EndoGusto’s obligations under this Agreement are not affected.

27. Governing law – Jurisdiction. 

Any dispute arising hereunder shall be exclusively construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this agreement, you consent to the personal jurisdiction and venue of the court located in the State of Delaware, without prejudice to the provisions of any applicable data protection law and/or regulation. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected.