Member Agreement

By enrolling in the KardioFit Health and Wellness Rewards Program, you acknowledge that you have read and understand this Membership Agreement and that you agree to be bound by all of its terms. If you do not agree to all of the terms of this Agreement, then you cannot participate in the Program and you should not click the "Login" or "Activate Account" button to complete the registration process.

This Agreement constitutes a legally binding agreement between KardioFit, Inc., a Delaware corporation ("Kardio"), and each individual who registers in the KardioFit Program, as described below (the "Program"), by completing the registration form on the KardioFit website ("you" or the "Member"). As used in this Agreement, the terms "we" and "us" mean KardioFit, and the term "our" means KardioFit’.

This Membership Agreement sets forth the relationship between you and us relating to the Program. You have to accept the terms of this Agreement in order to become a KardioFit member. By enrolling as a KardioFit member, you agree to these terms and conditions and that your use of this site and your participation in the Program is subject to this Agreement. By clicking the “Login” or “Activate Account” button, you also acknowledge that you have had an opportunity to review the KardioFit Privacy Statement or that it has been made available to you.

Membership

Registration. You represent that you are at least 18 years old and are a legal resident of the United States, its territories and possessions (except Puerto Rico), or Canada (except Quebec). You agree that it is your responsibility to keep your Member information current, complete and accurate by periodically updating your information in the appropriate section of our website.
License. Subject to this Agreement, we hereby grant you a non-exclusive, non-transferable license (without the right to sublicense) for as long as you participate in the Program and adhere to this Agreement, to participate in the Program. You agree that you obtain no rights other than the rights and licenses expressly granted in this Agreement.
Fees and Billing. Payment for the appropriate Individual or Group Membership services will either be made in advance by you via automatic credit card as an Individual Member or by your employer as a Group Member via automatic credit card or EFT payment or monthly invoice. If the payment method fails at any time for any reason, whether or not we choose to terminate your membership, you will not be eligible to receive any of the benefits of membership, including the right as a member to use and access the Program, or receive sweepstakes entries until such time your employer provides us with a valid payment method. From time to time KardioFit may offer prospective members a free trial offer. If a free trial period is offered, a person may sign up for only one free trial.
Sweepstakes. If you intend to participate in any of KardioFit’ sweepstakes, you need to review the Official Rules for each sweepstakes because those Rules will govern your participation in the sweepstakes. The Official Rules for each sweepstakes can be found at the KardioFit website: www.Kardio.com.
Cancelation. Your KardioFit membership will continue in effect unless and until you cancel your membership, your employer requests it be terminated or we terminate it. You may cancel your membership to KardioFit at anytime, and cancellation will be effective immediately. To cancel go to My Profile and select Cancel Subscription. If you choose to cancel, all your membership benefits will cease within 24 hours of cancellation.
Policies. You agree to comply with this Agreement, and all other policies, rules and terms and conditions as set forth in the Program materials, including materials found on websites of Participating Merchants, either in print or on our website (collectively, the "Policies"). The Policies, including any amendments which may be made from time to time, are hereby incorporated by reference into this Agreement. We may modify this Agreement or the Policies at any time upon notice given in accordance with this Agreement. This Agreement and the Policies as so amended will be posted on our website, and your continued use of the Program thereafter will constitute your affirmative acceptance of any such amendment and your agreement to the terms thereof. You also acknowledge and agree that any information you provide to a Participating Merchant is subject to that Participating Merchant's own privacy and data collection policies.

Member Obligations

7. No Unauthorized Use of the Program. You agree that you will not, and will not permit others to:

provide any unauthorized third party with access to the Program or any information, data, text, links, images, software, chat, communications and other content available through the Internet and proprietary to KardioFit (collectively, "Content") by any means;
modify, reverse engineer, reverse assemble or decompile any of the software applications used by you in connection with your participation in the Program;
engage in any activity that does not comply with U.S. law or other applicable law and regulations or otherwise engage in any illegal, manipulative or misleading activity through the use of the Program;
introduce into the Program any code intended to disrupt the Program, alter or delete its Content, access confidential Content on our website or interfere with the operation of the Program, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses;
post any material in any form whatsoever on our website or within the Program that is defamatory, obscene or otherwise unlawful or violates any third party's right of privacy or publicity; or
nfringe any third party's patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Progra
Knowingly and willfully inputting false exercise or daily meal data or other methods of inputting fraudulent data to remain enrolled in KardioFit.

8. Security. You will maintain the confidentiality of the user name and passwords by which you access your account at the KardioFit website, and will allow access to the KardioFit website and your account only by authorized persons, and not by any program, expert system, electronic agent, "bot" or other automated means. Any use of your assigned user name or passwords will be deemed to be your use. If there is a breach of security through your account, you will immediately change your password and notify us of such breach. You agree that, unless you have first notified us immediately of any such breach, we should assume that any instruction transmitted using your user name and password is yours and has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction. You will not permit any use of the Program that would damage, interfere with or unreasonably overload the Program. You acknowledge that KardioFit will not contact you to solicit your user name or password.

9. Discontinuation or Suspension of Use. We may, in our sole discretion, at any time and without prior notice:

change the Participating Merchants;
change, discontinue or limit access to the Program or any functionality, feature or other component of the Program; or
suspend or terminate your use of or access to all or part of the Program upon giving you notice of such suspension or termination.

Participating Merchant Offers and Payment of Contributions

10. Cash Prizes. If you chose to enter a sweepstakes that KardioFit may offer from time to time you may, subject to the Official Rules of the sweepstakes, be eligible to win cash prizes.

Use of Information

11. Use of Information.

You acknowledge that in order to administer the Program, we will collect information about you and your purchases from Participating Merchants. You authorize us to use any such information and to disclose such information (a) to our representatives and agents, (b) to third parties, where necessary or convenient for transfer or redemption of your accumulated Cash Back or otherwise in connection with the Program, (c) to comply with requests, orders or subpoenas from courts of law or any regulatory, legislative or administrative bodies and (d) otherwise in accordance with the terms of the KardioFit Privacy Statement on our website. You represent that you have full authority to register the credit or debit card you register for payment for the Program and to receive information about the transactions effected using such cards, accounts or identifiers.

Miscellaneous

12. Termination; Expiration or Forfeiture of Rewards Accounts.

This Agreement is effective when accepted by you, and will remain in effect and legally bind you and us until you or we terminate your membership in the Program. You may terminate your membership in the Program at any time in accordance with the procedures established on our website from time to time. We may terminate your membership in the Program without cause immediately after notice to you of such termination at any time. If we terminate your membership and you registered for a multi-month membership term (for example 3, 6, or 12 month terms) we will refund the unused portion of your membership fee. Refunds will be based on the number of full unused months remaining in your membership term.
Upon any termination of this Agreement, your right to use and access the Program, to earn rewards, and to receive award payments will terminate and Sections 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 hereof will survive in accordance with their terms. Subject to the limitations set forth in this Agreement, termination will not prejudice either your or our remedies at law or in equity.

Certain Disclaimers; Indemnification.

13. Disclaimer of Warranties.

THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR VALIDITY OF ANY MATERIALS RELATED TO THE PROGRAM AND DO NOT WARRANT THAT THE FUNCTIONALITY OF SUCH PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT SUCH PROGRAM OR THE SERVER(S) THAT MAKE(S) IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
KARDIOFIT WEBSITE AND THE PROGRAM MAY CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS, OR RECOMMENDATIONS OF PARTICIPATING MERCHANTS. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, RECOMMENDATIONS, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED BY SUCH PARTICIPATING MERCHANT. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, STATEMENT, RECOMMENDATIONS OR INFORMATION WILL BE AT YOUR SOLE RISK. FURTHERMORE, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ANY PARTICIPATING MERCHANT IN CONJUNCTION WITH THE PROGRAM.

14. Exclusion of Certain Damages. We will not be liable for any damages, including indirect or consequential damages, arising from:

any failure to screen users or Members of the Program;
acts or omissions of any users or Members of the Program;
materials posted by, or of, any party other than KardioFit any use thereof;
the accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over or obtained using the Internet; or
any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond our reasonable control, including the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power system, sabotage, armed hostilities, riots or government regulation of the Internet.
In addition to the foregoing, on occasion, Participating Merchants, KardioFit and/or any of their respective third party agents may fail to track your Qualified Purchases due to computer system failures or interruptions beyond the reasonable control of the tracking party. Furthermore, certain hardware devices and software such as pop-up blockers, ad blocking software, viruses, worms, Trojans, adware, spyware and malware can interfere with the tracking of Cash Back amounts and/or the operation of our website. Neither KardioFit nor any Participating Merchant shall be liable for your failure to receive Cash Back or important information about the Program as a result of a computer system failure or interruption or hardware devices or software on your computer or network.

15. Indemnification. You agree to indemnify KardioFit, any Participating Merchant, as well as their respective officers, directors, employees, successors, agents, and affiliates, for any and all claims, damages, losses and causes of action (including attorneys' fees and court costs) arising out of or relating to your breach of this Agreement (including without limitation relating to a breach by you of Section 7), or for any materials in any form whatsoever that are provided by you (or through your user name and/or password). You agree to cooperate as fully as reasonably required in our defense and/or settlement of any claim. We reserve in our reasonable discretion the right to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.

Limitation of Liability.

16. NONE OF KARDIOFIT, KARDIOFIT ANY PARTICIPATING MERCHANT, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR AFFILIATES ARE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE PROGRAM, THE INFORMATION CONTAINED ON THE KARDIOFIT WEBSITE, OR (EXCEPT IN THE CASE OF THE APPLICABLE PARTICIPATING MERCHANT) ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED BY PARTICIPATING MERCHANTS IN CONJUNCTION WITH THE PROGRAM, EVEN IF ANY SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

17. IN NO EVENT WILL KARDIOFIT TOTAL LIABILITY TO YOU FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE KARDIOFIT WEBSITE OR PARTICIPATION IN THE PROGRAM, WHETHER IN CONTRACT, TORT, (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE).

Electronic and Oral Communications.

18. Member and Account Guest Instructions. We may rely on your oral and electronic instructions. In addition, you consent to the monitoring and recording of your telephone conversations with us for training or compliance purposes or to provide a record of your instructions. You agree that we will not be liable for honoring oral instructions received from any person claiming to be you, provided reasonable verification procedures have been followed. We may follow any instructions received by electronic means through the KardioFit website just as if you had given such instructions in person, regardless of whether or not you have personally initiated such instructions.

19. KardioFit Communications. You consent to the receipt of all reports, transaction confirmations, account statements, correspondence and other information from us electronically through either (i) access to your Rewards Account on our website or (ii) the email address provided by you to us. You are responsible for updating your email address if it changes by logging into your account at www.Kardio.com and updating your communication preferences on our website. We will not be responsible for your inability to connect to the Internet or to access the KardioFit website or otherwise not to receive electronic communications. Electronic communications are presumed to be delivered to and received by you when sent by us, whether actually received or not. You acknowledge that you have access to hardware and software meeting the system requirements set forth on the KardioFit website necessary to receive from us correspondence and records in electronic form. You may withdraw the consent to have those records provided or made available in electronic form by mailing written notice to KardioFit. Such request will be made by mailing a written request to KardioFit at 227 Bellevue Way NE, Suite 701, Bellevue, WA 98004, Attn: Kardio Wellness Rewards Program. If you withdraw such consent, we reserve the right to terminate this Member Agreement.

General.

20. Governing Law. The validity, construction and interpretation of this Agreement, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of the state of Washington, excluding its conflicts of laws principles. Each party hereto agrees that all claims relating to this Agreement will be heard exclusively by a state or federal court in Washington. Accordingly, each party hereby consents to the exclusive jurisdiction of any state or federal court in the state of Washington over any proceeding related to this Agreement, irrevocably waives any objection to the venue of any such court, and irrevocably waives any claim that any such proceeding in such a court has been brought in an inconvenient forum. Notwithstanding what is set forth hereinabove, you also agree that any action or dispute that you have against us can be arbitrated, at our option, in Seattle, Washington, with Craig Sherman of Wilson Sonsini Goodrich Rosati or his designee acting as the arbitrator.

21. Assignment. You may not assign your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void. We may assign our rights and obligations under this Agreement, in whole or in part, without your consent. This Agreement will inure to the benefit and burden of the parties hereto and their permitted successors and assigns.

22. Notices. Any notice by one party hereto to the other will be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address or the mailing address specified in your account profile and to us at 227 Bellevue Way NE, Suite 701, Bellevue, WA 98004, Attn.: Member Services, or any other address of which either party hereto may from time to time notify the other in accordance with this Section 22. All notices will be in English and will be deemed effective on the date of personal delivery, upon confirmation of email transmission, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Program.

23. No Waiver; Severability. The waiver by either party hereto of a breach or default of any provision of this Agreement by the other party hereto will not be construed as a waiver of any succeeding breach or default of the same or any other provision, nor will any delay or omission on the part of either party hereto to exercise or avail itself of any right, power or privilege that either party has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. If any provision of this Agreement is held to be invalid, such invalidity shall not effect the remaining provisions.

24. Relief. You acknowledge and accept that any breach of Section 7 above is likely to irreparably harm us and will not be susceptible of cure by monetary damages. Consequently, if you breach any provisions of Section 7 above, then we will be entitled to obtain injunctive or other equitable relief in addition to any remedies we may have at law.

25. Third-Party Beneficiary. Each Participating Merchant is hereby expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you.

26. Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof (including without limitation, earlier versions of this Agreement that may have been accepted by you through the KardioFit website or otherwise). We reserve the right to modify this Agreement at any time upon notice given in accordance with this Agreement. Your non-termination and continued use of the Program after notice of any modification of this Agreement will constitute affirmative acceptance by you of such modification and your consent to abide by any terms thereof. You acknowledge that the most recent version of this Agreement will be located on the KardioFit website under Membership Agreement. No other act, document, usage or custom will be deemed to amend or modify this Agreement.

Effective Date 9/01/11