ACSM American Fitness Index® Data Use Agreement

The ACSM American Fitness Index® Data Report is a Scientific Snapshot of the State of Health and Fitness at the Metropolitan Level.

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Welcome to the American College of Sports Medicine (the “Company,” “we,” “us,” or “ACSM”) and the ACSM American Fitness Index report website (the “Site”). By using the Site or any of the ACSM American Fitness Index® Reports (“AFI Reports”), you (“you”) agree to be bound by the following terms and agree that you are responsible for compliance with any applicable laws and regulations (hereinafter referred to as “Terms of Use”). In addition, you agree to indemnify ACSM against any and all claims by third parties arising out of your use of the Site in violation of the Terms of Use. If you do not agree to these Terms of Use, do not access or use this Site or the AFI Reports. The Terms of Use may be updated by us from time to time without notice to you. You can review the most current version of the Terms of Use at any time at the Site.

1. LICENSE GRANT. You should assume that everything that you read or see on the Site is copyrighted or otherwise protected and owned by us or some third party who licensed to us the right to use such material. Unless otherwise expressly noted, nothing that you read or see on the Site may be copied or used except as provided in these Terms of Use or with the prior written approval of the Company. Conditioned on your continued compliance with the terms and conditions of this Agreement, this Agreement provides you with a revocable, royalty-free, limited, non-exclusive, nontransferable license to use for the term identified below the ACSM American Fitness Index data made publicly available on the Site (the “Data Set”) for your internal personal use only and solely in connection with your own research and analysis.

2. LICENSE GRANT RESTRICTIONS. Except as provided above, you may not modify, create derivative work(s) of, distribute, reproduce, or otherwise use in any manner not expressly permitted herein the Data Set or any part thereof.  You may not use the Data Set to misrepresent or otherwise make misleading statements of fact with respect to the AFI Reports or methodology.  You may not remove or alter any proprietary notice on the Data Set. Unauthorized commercial publication or exploitation of text, images or content of the Site or Data Set is specifically prohibited. Anyone wishing to use any of these files or images for commercial use must request and receive prior written permission from ACSM. Permission for such use is granted on a case-by-case basis at the sole discretion of ACSM. A usage fee may be assessed depending on the type and nature of the proposed use.  All rights not expressly granted to you herein are hereby reserved to ACSM.

3. USER OBLIGATIONS. Data Set users will notify ACSM when any work based on or derived from the Data Set is created or distributed.  You also agree to acknowledge ACSM in the publication of any results from use of the Data Set by including the following notice: “Data for this work was obtained from the ACSM American Fitness Index® Report.” In addition, you agree to provide ACSM with a complete and accurate copy of any work that uses any portion of the Data Set covered by this Agreement.

4. PROPRIETARY RIGHTS. ACSM shall retain all ownership right, title, and interest in and to all information, documentation, and other materials associated with the Data Set and AFI Reports. ACSM, ACSM AMERICAN FITNESS INDEX, and all other names, logos, and icons identifying ACSM and its products and services are proprietary trademarks of ACSM, and any use of such marks without the express written permission of ACSM is strictly prohibited.

5. SUBMISSIONS.  If you submit any information to ACSM, including any comments, remarks, suggestions, ideas, notes, drawings, graphics, concepts, or other information, you are giving that information, and all your rights in it, to ACSM free of charge, and that information will be treated as non-confidential and non-proprietary and may be used by ACSM for any purpose, without your consent or any compensation to you or anyone else. This is true whether you submit such information to ACSM by e-mail, through a form on the Site, on a bulletin board, message board, blog or in any other manner. Please do not submit or transmit any material that is unlawful, threatening, libelous, defamatory, obscene, pornographic, profane, or might in any other way violate any law. ACSM may from time to time monitor, review and, in its sole discretion, modify or delete any postings you make on the Site however, ACSM is not obligated to do so. Whether or not ACSM modifies or remove such material, you remain solely responsible for any material you submit to ACSM. Through your usage of the Site, you may submit and/or ACSM may gather certain limited, anonymous information about you and your usage of the Site. ACSM is free to use such information for any purpose it deems appropriate, including marketing purposes.

6. LINKED INTERNET SITES.  The Site may provide links and pointers to Internet sites maintained by others (“Third Party Sites”). ACSM has not reviewed all of the Third Party Sites linked to the Site and is not responsible for the content of or any products or services offered on such Third Party Sites. These Terms of Use apply only to the Site, and not to the Third Party Sites. ACSM does not endorse or take responsibility for the content, advertising, products or other materials made available through any Third Party Site. Permission must be granted by us for any type of link to the Site.

7. LIMITATION OF LIABILITY. ALL MATERIAL ON THIS SITE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACSM MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY OF THE MATERIAL ON THIS SITE, OR ON ANY SITE OR SITES “LINKED” TO THIS SITE. ACSM MAKES NO WARRANTY THAT THE SITE WILL BE AVAILABLE, UNINTERRUPTED, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ACSM OR ITS AFFILIATES, LICENSORS, SUPPLIERS, CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES HAVE ANY LIABILITY TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR INABILITY TO USE THE SITE, SITE CONTENT OR ANY PRODUCTS OR SERVICES, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE SYSTEM FAILURE, LOSS OF DATA, OR LOSS OF USE RELATED TO THE SITE OR ANY WEB SITE OPERATED BY ANY THIRD PARTY. IF YOU ARE DISSATISFIED WITH US, ANY OF OUR SERVICES OR THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE. IN NO EVENT SHALL THE TOTAL LIABILITY TO YOU BY ACSM OR ANY ACSM AFFILIATES, LICENSORS, SUPPLIERS OR CONTRACTORS FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHER WISE) EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING THE SITE.

8. INDEMNITY. You agree to defend, indemnify, and hold harmless ACSM and its affiliates, employees, licensors, agents, directors, officers, partners, representatives, shareholders, attorneys, predecessors, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from your use of the Site, the AFI Reports, the Data Set, and any breach by you of this Agreement.

9. GOVERNING LAW. This Site is controlled and operated from within the United States of America. ACSM makes no representation that the material on the Site is appropriate or available for use in other locations. If despite these conditions, you use the Site from outside the United States, you are solely responsible for compliance with any applicable local laws. The Terms of Use shall be governed by the laws of the State of Indiana without giving effect to any choice or conflict of law or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Indiana, provided, however, that disputes concerning patent, federal trademark, or federal copyright matters shall be governed by federal law. You consent to jurisdiction in the State of Indiana. ACSM’s failure to strictly enforce any right against you shall not constitute a waiver thereof. If any provision of these Terms of Use is deemed invalid, illegal, or unenforceable such provision will be deemed amended to conform to the applicable laws and the remainder of the Terms of Use shall remain in full force and effect. This represents the full understanding of the parties with respect to this subject matter. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you against ACSM arising out of or related to your use of the Site must be filed within one (1) year after such claim or cause of action arose.

10. TERM AND TERMINATION. This Agreement and your right to use the Data Set will commence as of the Effective Date. This Agreement will terminate automatically if you fail to comply with any of the terms and conditions described herein, including by exceeding the scope of the license. Termination or expiration of this Agreement will be effective without notice. You may also terminate at any time by ceasing to use the Data Set, but all applicable provisions of this Agreement will survive termination, as outlined below. Upon termination or expiration, you must return, destroy, or delete from your system all copies of the Data Set (and any associated materials provided by ACSM) in your possession. The provisions concerning proprietary and intellectual property rights, submissions, confidentiality, indemnity, disclaimers of warranty and liability, termination, and governing law will survive the termination or expiration of this Agreement for any reason.

11. RIGHT OF MODIFICATION AND TERMINATION.  The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, this Site (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of this Site. Additionally, we may terminate this agreement at any time, without notice to you, if we believe, in our sole discretion, that you have breached or may breach any term or condition of this agreement, or we may terminate this agreement for our convenience. You may terminate this agreement at any time by destroying all materials received from our Site and ceasing to use our Site.

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