Welcome to the Nutrisense nutritional program for individuals wanting to optimize their health which is accessible at nutrisense.io (the “Website”). This Terms of Service Agreement (the “Agreement”) is made and entered into by and between you and Nutrisense, Inc. (the “Company”, “us”, “we”, or “our”). This Agreement sets forth the terms and conditions that govern your use of and access to the Website and any program, products, devices, materials, software, application (the “App”), and services provided by us (collectively, the “Services”).
1. Acceptance of this Agreement.
- Acceptance Through Using or Accessing the Services.
Please review the following terms carefully. By accessing or using the Services (or by clicking on “accept” or “agree” to this Agreement when prompted), you agree to be bound by the terms and conditions of this Agreement on behalf of yourself or the entity or organization that you represent. If you do not agree to the terms and conditions of this Agreement, you may not use or access the Services and must exit the Website immediately.
- Eligibility Requirements to Use or Access the Services.
To use the Website or any other Services, you must be (i) at least 18 years old, (ii) a resident of the United States, and (iii) not a competitor of or using the Services for purposes that are competitive with the Company.
By accessing or using the Services, you represent and warrant that you meet all the foregoing eligibility requirements. You also represent and warrant that you have the right, authority, and capacity to enter into this Agreement on your behalf or the entity or organization that you represent. If you do not meet all these requirements, you may not use or access the Services.
- Changes to this Agreement.
The Company reserves the right to change this Agreement from time to time in its sole discretion without notice to you. The latest version of the Agreement will be posted on the Website and should be reviewed prior to accessing or using the Services. All changes will be effective immediately when posted on the Website and will apply to your use of and access to the Services from that point onward.
2. Access to the Services.
- Changes to Your Access and the Services. The Services may change from time to time as the Company evolves, refines, adds, or removes features of the Services. The Company reserves the right to modify, withdraw, or discontinue the Services, in whole or in part, at any time without notice to you. You agree that the Company shall have no liability to you or any third party for any losses or damages caused by the Services not being available, in whole or in part, at any time or for any period.
- Account Responsibilities. You are entirely responsible for maintaining the confidentiality of your password and account. You are also entirely responsible for any and all activities associated with your account. Your account is personal to you and you agree not to provide any other person with access to the Services or any portions of it using your username, password, or other security information. You should ensure that you exit from your account at the end of each session. You should use extra caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You may not transfer your account to anyone else without our prior written permission. You agree to notify the Company immediately of any actual or suspected unauthorized use of your account or any other breach of security. The Company will not be liable for any losses or damages arising from your failure to comply with the above requirements. You will be held liable for losses or damages incurred by the Company or any third party due to someone else using your account or password.
- Termination or Deletion of an Account. The Company shall have the right to suspend or terminate your account at any time in our sole discretion for any or no reason, including if we determine that you have violated any terms or conditions of this Agreement. You may delete your account at any time, for any reason, by following the instructions on the Website, in the App, and/or received from our support team.
- Devices The Website and App are configured for certain computers, tablets, smart phones, and/or other electronic devices (each a “Device”), and this Agreement shall apply to any visit, access, registration with, subscription to, and use by you of the Website, the App and/or the Services through any such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier, and network access necessary to properly visit, access, register with, and use the Website, the App and/or the Services. We do not guarantee that the Website, the App, the Services, or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier, or network. All or any part of the voice, message and data fees, rates, charges, and taxes of your Device’s carrier or network, or another third party, may apply to your visit, access, registration with, subscription to and/or use of the Website, the App and/or the Services. We are not responsible for, and you further accept full responsibility for, all Device carrier and network fees, rates, charges, and taxes which may apply, if any.
3. Policy for Using the Services.
- Nutrisense Is Not A Healthcare Provider
Nutrisense does not provide medical services. We provide a platform to facilitate a consultation between affiliated healthcare providers (“Providers”) and you. The Consent to Telehealth services is between you and the Providers. The health and wellness resources made available through our Services are not a substitute for direct, in-person health care services in all cases. You acknowledge and agree that we do not provide medical advice, diagnosis, or treatment recommendations. You acknowledge and agree that your own healthcare professionals are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of any medical services. The decision to focus on diagnosis, treatment recommendations, or both, rests with you and your own healthcare professionals. You understand that throughout any communication or consultation with a Provider via the Services, you are not entering into a provider-patient relationship with us.
The Website, the App, and the Services are for information purposes only and do not constitute medical advice, diagnosis, treatment, or recommendations of any kind. You should always seek the advice of your own qualified health care professionals with any questions or concerns you may have regarding any medical needs or conditions. The Website, the App, and the Services are not a substitute for professional medical diagnosis or treatment. Reliance on any information appearing on the Website and or the App is solely your decision and at your own risk.
- Consent to Telemedicine Services.
Telemedicine is the use of electronic communications to enable health care providers at different locations to share individual patient medical information for the purpose of improving patient care. Providers may include primary care practitioners, specialists, and/or subspecialists. The information may be used to determine eligibility for a prescription and, where indicated, to provide such prescription. Please see the Consent to Telemedicine for a full description of the benefits and risks of telemedicine use. The Consent to Telemedicine is hereby incorporated into these Terms of Service by reference and constitutes a part of these Terms of Service.
By accepting these Terms, you agree and consent to us, our affiliates, or health care providers sending you disclosures, notices, messages, reports, and other communications which you agree are your sole responsibility to monitor. You acknowledge and agree that you will not hold us or any of our affiliate liable for any loss, injury, or claim of any kind resulting from your failure to monitor, read, or interact with these communications or for your failure to comply with any recommendations contained in these communications.
- Pharmacy Services.
You hereby give us consent to provide to our partner pharmacies all information necessary to provide you pharmacy services including, health care records, and other applicable health care information and personal information (such as your name, location, and demographic information) provided by you. If you elect to use the Services, a partner pharmacy will fulfill any prescriptions provided by affiliated health care providers through the Services. You hereby acknowledge that your products (including devices and medications), if approved, may not be shipped in child-resistant packaging and that you must keep all products out of the reach of children.
- Managing Your Subscription.
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. If auto-renewal is enabled for the Services you have subscribed for, you will be charged automatically in accordance with the term you selected. If, in our judgment, your purchase constitutes a high-risk transaction, we will require you to provide us with a copy of your valid government-issued photo identification, and possibly a copy of a recent bank statement for the credit or debit card used for the purchase. We reserve the right to change products and product pricing at any time. We also reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. Please note that our products are sold strictly on cash-pay basis, and no insurance payments will be processed or accepted. Please do not attempt to request reimbursement for Services through your insurance provider. You agree to pay the full cost directly for any products and services purchased with us. For additional information about renewals, cancellations, returns, or refunds, please check our Account & Billing site, which is incorporated herein by reference.
- Prohibited Uses.
You may use the Services for lawful purposes only and in accordance with this Agreement. You agree not to use the Services in any way that: (a) violates any international, federal, provincial or state regulations, rules, laws, or local ordinances, (b) could damage the Services or general business of the Company, (c) infringes upon or violates our intellectual property rights or the intellectual property rights of others, (d) interferes with the proper working of the Services, (e) collects or tracks the personal information of others, or (f) interferes with or circumvents the security features of the Services.
- Geographic Restrictions.
The Company is based in the United States. The Services are for use by persons located in the United States only. By choosing to access the Services from any location other than the United States, you accept full responsibility for compliance with all local laws. The Company makes no representations that the Services or any of its content are accessible or appropriate outside of the United States.
4. Intellectual Property Rights.
- Ownership of Intellectual Property.
You acknowledge that all intellectual property rights, including copyrights, trademarks, trade secrets, and patents, in the Services and its contents, features, and functionality (collectively, the “Content”), are owned by the Company, its licensors, or other providers of such material. The Content is protected by U.S. and international intellectual property or proprietary rights laws. Neither this Agreement nor your access to the Services transfers to you any right, title, or interest in or to such intellectual property rights. Any rights not expressly granted in this Agreement are reserved by the Company and its licensors.
- License to Use the Services.
During the Term of this Agreement, the Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to use and access the Content for your personal use in accordance with this Agreement. The Content may not be used for any other purpose. This license will terminate upon your cessation of use of the Services or at the termination of this Agreement.
- Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions:
- No Copying or Distribution. You shall not copy, reproduce, publish, display, perform, post, transmit, or distribute any part of the Content in any form or by any means except as expressly permitted herein or as enabled by a feature, product, or the Services when provided to you.
- No Modifications. You shall not modify, create derivative works from, translate, adapt, disassemble, reverse compile, or reverse engineer any part of the Content.
- No Exploitation. You shall not sell, license, sublicense, transfer, assign, rent, lease, loan, host, or otherwise exploit the Content or the Services in any way, whether in whole or in part.
- No Altering of Notices. You shall not delete or alter any copyright, trademark, or other proprietary rights notices from copies of the Content.
- No Competition. You shall not access or use the Content in order to build a similar or competitive website, product, or service.
- Systematic Retrieval. You shall not use any information retrieval system to create, compile, directly or indirectly, a database, compilation, collection or directory of the Content or other data from the Services.
- Trademark Notice.
All trademarks, logos, and service marks displayed on the Services are either the Company’s property or the property of third parties. You may not use such trademarks, logos, or service marks without the prior written consent of their respective owners.
5. User Content
- User Generated Content.
The Services may contain message boards, chatrooms, profiles, forums, and other interactive features that allow users to post, upload, submit, publish, display, or transmit to other users or other persons content or materials (collectively, “User Content”) on or through the Services.
You are solely responsible for your User Content. Please consider carefully what you choose to share. All User Content must comply with the Content Standards set forth below. Any User Content you post on or through the Services will be considered non-confidential and non-proprietary. You assume all risks associated with the use of your User Content. This includes any reliance on its accuracy, completeness, reliability, or appropriateness by other users and third parties, or any disclosure of your User Content that personally identifies you or any third party. You agree that the Company shall not be responsible or liable to any third party for any User Content posted by you or any other user of the Services.
You further agree that the Company shall not be responsible for any loss or damage incurred as the result of any interactions between you and other users. Your interactions with other users are solely between you and such users. If there is a dispute between you and any other user, we are under no obligation to become involved.
You hereby grant to the Company an irrevocable, non-exclusive, royalty-free and fully paid, transferable, perpetual, and worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, in connection with the Services and the Company’s business including, without limitation, for promoting and redistributing part or all of the Services in any media formats and through any media channels.
- Content Standards.
You agree not to send, knowingly receive, upload, transmit, display, or distribute any User Content that does not comply with the following standards (“Content Standards”). User Content must not:
- Violate Laws or Obligations. Violate any applicable laws or regulations (including intellectual property laws and right of privacy or publicity laws), or any contractual or fiduciary obligations.
- Promote Illegal Activity or Harm to Others. Promote any illegal activity; advocate, promote, or assist any unlawful act; or create any risk of any harm, loss, or damage to any person or property.
- Infringe Intellectual Property Rights. Infringe any copyright, trademark, patent, trade secret, moral right, or other intellectual property rights of any other person.
- Defamatory, Abusive, or Otherwise Objectionable Material. Contain any information or material that we deem to be unlawful, defamatory, trade libelous, invasive of another’s privacy or publicity rights, abusive, threatening, harassing, harmful, violent, hateful, obscene, vulgar, profane, indecent, offensive, inflammatory, humiliating to other people (publicly or otherwise), or otherwise objectionable. This includes any information or material that we deem to cause annoyance, inconvenience, or needless anxiety, or be likely to upset, embarrass, alarm, or annoy another person.
- Promotion of Sexually Explicit Material or Discrimination. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Fraudulent Information or Impersonation. Contain any information or material that is false, intentionally misleading, or otherwise likely to deceive any person including, without limitation, impersonating any person, or misrepresenting your identity or affiliation with any person or organization.
- Commercial Activity. Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Endorsement by the Company. Represent or imply to others that it is in any way provided, sponsored, or endorsed by the Company or any other person or entity, if that is not the case.
- Monitoring and Enforcement.
We reserve the right at all times, but are not obligated, to:
- take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Content Standards or any other provision in this Agreement, or creates liability for the Company or any other person. Such action may include reporting you to law enforcement authorities.
- remove or reject any User Content for any or no reason in our sole discretion.
- disclose any User Content, your identity, or electronic communication of any kind to satisfy any law, regulation, or government request, or to protect the rights or property of the Company or any other person.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
We do not review User Content before it is posted on or through the Services, and therefore cannot ensure prompt removal of questionable User Content. Accordingly, the Company and its affiliates, and their respective officers, directors, employees or agents, assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. The Company shall have no liability or responsibility to anyone for performance or non-performance of the activities described in this Section.
- Copyright Infringement (Digital Millennium Copyright Act Policy).
The Company respects the intellectual property of others and expects users of the Services to do the same. It is the Company’s policy to terminate the users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that your work has been copied in a way that constitutes copyright infringement and wish to have the allegedly infringing material removed, please provide the following information in accordance with the Digital Millennium Copyright Act to our designated copyright agent:
- a description of the copyrighted work that you allege has been infringed;
- a description of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled;
- a description of where the material that you claim is infringing is located;
- your contact information, including your address, telephone number, and email address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- a physical or electronic signature of the copyright owner or a person authorized to act on their behalf.
Please note that pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorneys’ fees incurred by us in connection with the written notification and allegation of copyright infringement.
Designated copyright agent for the Company:
NAME: General Counsel
EMAIL: [email protected]
- Feedback to the Company.
If you provide the Company with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to the Company all rights in such Feedback and agree that the Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. The Company will treat any Feedback that you provide to the Company as non-confidential and non-proprietary. You agree that you will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
6. Telephonic and Electronic Communication.
You hereby expressly consent to Nutrisense: (a) sending you any type of electronic message as we deem appropriate in our sole discretion, including, without limitation, push notifications sent to your mobile device, messages sent to you via the Site and/or the Mobile App, text messages, emails, electronic notices, and other such communications, or (b) calling you on the telephone (whether cell phone, landline, or otherwise). Such communications can be made by us for any purpose, including, without limitation, to assist with your use of the Services or for advertising, marketing, or promotional purposes. By giving such consent, you agree that no such communication shall violate the Telephone Consumer Protection Act, the CAN-SPAM Act, or any other applicable laws, rules, or regulations. Voice, message, and data fees, rates, charges and/or taxes may apply to you, and you are responsible for payment of the same. You are not required to grant the foregoing consent as a condition for the purchase or license of any Services.
You may opt-out of receiving text messages, emails, and/or telephone calls from us as described above at any time by any reasonable means, including, without limitation and by way of example, by sending an email to [email protected], with a subject line of “Opt-Out.” Also, you may opt-out of receiving text messages at any time by following the opt-out instructions in any such text messages you have received. You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Site, the Mobile App, and/or the Services.
7. Assumption of Risk.
The information presented on or through the Services is made available for general information purposes only. The Company does not warrant the accuracy, completeness, suitability, or quality of any such information. Any reliance on such information is strictly at your own risk. The Company disclaims all liability and responsibility arising from any reliance placed on such information by you or any other user to the Services, or by anyone who may be informed of any of its contents.
With the exception of the Services, you are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, “Systems”) necessary for you to access and use the Services, as well as Internet services via the Internet service provider of your choice and any wireless services you require (the “Connections”). This responsibility includes, without limitation, your utilizing current versions of web-browsers and appropriate encryption, antivirus, anti-spyware, and Internet security software. By checking the checkbox affirming your consent to these Terms, you demonstrate that you can access information that we provide to you by posting electronic communications on the Site or the Mobile App or via email and otherwise confirm that you are able to access and use the Site and the Services and receive electronic and telephonic communications from us.
In connection with your use of the Services, you understand and acknowledge the following and assume the risk of using the Services:
- There are certain security, corruption, transmission error, and access availability risks associated with using open networks such as the Connections, and you hereby expressly assume such risks;
- You are responsible for the data security of the Systems used to access the Services and for the transmission and receipt of information using such Systems;
- You have requested access to the Services, made your own independent assessment of the adequacy of the Connections and Systems, and are satisfied with that assessment.
- We are not responsible for any errors or problems that arise from the malfunction or failure of the Connections or the Systems;
- We may enable the use of geolocation services with our Mobile App, and we may use this geolocation information to provide features of the Services and to improve and customize the Services. If you do not want us to use geolocation data from you mobile device, you may set your location preferences on your device accordingly;
WHEN YOU CONTACT US BY EMAIL OR TEXT, WE HAVE NO WAY OF PROTECTING YOUR INFORMATION UNTIL IT REACHES US SINCE EMAIL AND TEXT MESSAGING AND THE COMMUNICATION LINES THAT SUCH COMMUNICATIONS TRAVEL OVER DO NOT HAVE THE SECURITY FEATURES THAT ARE BUILT INTO OUR SERVICES AND MAY NOT BE SECURE. BY SENDING ANY INFORMATION TO US VIA THE SERVICES, EMAIL OR TEXT, OR AGREEING TO RECEIVE ELECTRONIC COMMUNICATIONS FROM US THROUGH THE SERVICES, EMAIL, PUSH NOTIFICATIONS OR TEXT, YOU ACKNOWLEDGE AND ACCEPT ANY RISK AND DAMAGE ARISING FROM DISCLOSURE OF SUCH INFORMATION IN THE COURSE OF TRANSMISSION.
The Children’s Online Privacy Protection Act requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years old. We do not knowingly collect or solicit personally identifiable information from children under 13 years old. If you are a child under 13 years old, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13 years old, we will delete that information as quickly as possible. If you believe that a child under 13 years old may have provided us personal information, please contact us.
9. Third-Party Links and Ads.
The Services may contain links to third-party websites, resources, and services, as well as advertisements (collectively, “Third-Party Links”). Third-Party Links are provided for your convenience only. The Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. The Company has no control over the contents, products, or services of any Third-Party Link and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any Third-Party Link, you do so entirely at your own risk and subject to the terms and conditions of use for such Third-Party Link. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third-Party Link.
The Company may suspend or terminate your access or rights to use the Services at any time, for any reason, in our sole discretion, and without prior notice, including for any breach of the terms of this Agreement. Upon termination of your access or rights to use the Services, your right to access and use the Services will immediately cease. The Company will not have any liability whatsoever to you for any suspension or termination of your rights under this Agreement, including for termination of your account or deletion of your User Content. If you have registered for an account, you may terminate this Agreement at any time by contacting the Company and requesting termination.
- Effect of Termination.
Upon termination of this Agreement, any provisions that by their nature should survive termination shall remain in full force and effect. This includes, without limitation, ownership or intellectual property provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to the Company or any third party. You understand that any termination of your access to and use of the Services may involve deletion of your User Content associated with your account from our databases.
11. No Warranty.
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, THE COMPANY AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE, COMPLETE, OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR REQUIREMENTS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, DATA, OR OTHER PROPRIETARY MATERIAL THAT MAY RESULT FROM YOUR USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR THIRD-PARTY LINKS, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES OR ANY OTHER USER.
THE SERVICES WOULD NOT BE PROVIDED WITHOUT THESE LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
12. Limitation of Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES, OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SERVICES, ANY THIRD-PARTY LINK, OR ANY CONTENT ON THE SERVICES OR SUCH THIRD-PARTY LINK, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, REVENUE, OR PROFIT, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF DATA, LOSS OF GOODWILL, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless the Company and its affiliates and their respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) from and against any and all losses, claims, actions, suits, complaints, damages, liabilities, penalties, interest, judgments, settlements, deficiencies, disbursements, awards, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, fees and other costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out of or relating to (a) your breach of this Agreement, (b) your use or misuse of the Services including, but not limited to, your User Content, (c) your acts, errors, or omissions, or (d) any actions taken by a third party using your account. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to assist and cooperate with our defense or settlement of these claims.
- Governing Law.
All matters relating to this Agreement, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Illinois, without giving effect to any conflict of law principles.
- Dispute Resolution.
Any action or proceeding arising out of or related to this Agreement or the Services shall be brought only in a state or federal court located in the State of Illinois, County of Cook, although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You hereby irrevocably submit to the jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venues.
At the Company’s sole discretion, it may require any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, to be submitted to and decided by a single arbitrator by binding arbitration under the rules of the American Arbitration Association in Chicago, IL. The decision of the arbitrator shall be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either party. The prevailing party in the arbitration proceedings shall be awarded reasonable attorneys’ fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrator shall for good cause determine otherwise.
All arbitrations shall proceed on an individual basis. You agree that you may bring claims against the Company in arbitration only in your individual capacities and in so doing you hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. Notwithstanding anything to the contrary under the rules of the American Arbitration Association, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Limitation to Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED AND BARRED.
Except as otherwise set forth in this Agreement, no failure of the Company to exercise, or delay by the Company in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Entire Agreement.
This Agreement, together with all documents referenced herein, constitutes the entire agreement between you and the Company with respect to the subject matter contained herein. This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter hereof.
Headings and titles of sections, clauses, and parts in this Agreement are for convenience only. Such headings and titles shall not affect the meaning of any provisions of the Agreement.
- No Agency, Partnership or Joint Venture.
No agency, partnership, or joint venture has been created between you and the Company as a result of this Agreement. You do not have any authority of any kind to bind the Company in any respect whatsoever.
You shall not assign or delegate any of your rights or obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section shall be deemed null and void. No assignment or delegation shall relieve you of any of your obligations hereunder. The Company may freely assign or delegate its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns.
- Export Laws.
The Services may be subject to U.S. export control laws and regulations. You agree to abide by these laws and their regulations (including, without limitation, the Export Administration Act and the Arms Export Control Act) and not to transfer, by electronic transmission or otherwise, any materials from the Services to either a foreign national or a foreign destination in violation of such laws or regulations.
16. Contact Information.
All notices of copyright infringement claims should be sent to the designated copyright agent as provided in Section 5 (User Content). All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to [email protected].