1:1 NUTRITION COACHING
TERMS AND CONDITIONS OF USE
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY SUBMITTING ANY ORDER FORM FOR THE SERVICES, OR BY MAKING USE OF THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on Dec 7, 2018. It is effective between You and Us as of the date You accepted this Agreement. HS reserves the right to modify these terms and conditions from time to time, in its sole discretion, and any such changes are effective immediately upon being made available to You, whether by email or public posting on the website associated with the Services.
TABLE OF CONTENTS
2. HS Responsibilities
3. Use of Services
4. Fees and Payment for Services
5. Proprietary Rights and Licenses
7. Representations, Warranties, Exclusive Remedies and Disclaimers
8. Mutual Indemnification
9. Limitation of Liability
10. Terms and Termination
11. General Provisions
STATEMENT OF AGREEMENT
HS and User hereby acknowledge the accuracy of the foregoing background information and hereby agree as follows:
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with You or Us. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Agreement” means these 1:1 Nutrition Coaching Terms and Conditions of Use, and any amendment to this Agreement.
1.3 “Contact” means a scheduled, 1:1 remote interaction between the User and a Dietitian via the Website or the App. Contacts will occur at mutually agreeable times for User and a Dietitian, subject to availability, and will be booked by the User through the Website or the App.
1.4 “Dietitian” means an individual who is a licensed, registered dietitian in one or more U.S. jurisdictions who will be assigned to User as part, and in delivery, of the Services.
1.6 “Intellectual Property Rights” means copyright, trademark, patent, publicity, trade secret, and all other intellectual property rights.
1.7 "Losses" means actual or alleged claims, allegations, suits, damages, liabilities, losses, expenses, costs, including court costs, collections fees, reasonable attorneys’ fees, or amounts payable under any judgment, verdict, court order, or settlement.
1.8 “Order Form” means an online order specifying the Services to be provided hereunder that is submitted by you through the Website or the App.
1.9 “Purchased Services” means Services that a User purchases through an Order Form.
1.10 “Services” means the products and services comprising the 1:1 nutrition coaching services that are made available online by HS through the Website and the App.
1.11 “User Data” means all documents, information, and other data uploaded to the Website or App by You or on behalf of You.
2.1 Provision of Purchased Services. HS will (a) make the Purchased Services available to User pursuant to this Agreement, (b) provide HS' standard support for the Purchased Services to User at no additional charge, and (c) use commercially reasonable efforts to make the Purchased Services available via Contacts based upon agreed-upon scheduling between You and the Dietitian; provided that, HS and Dietitians shall be excused, and have no liability, for any failure or delay in fulfilling any obligations under this Agreement in the event of: (i) planned downtime, (ii) emergency maintenance, or (iii) circumstances beyond Our or a Dietitian’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack. The Services will be provided in the English language only with reasonable skill and care.
2.2 Service Exclusions and Disclaimers. HS does not guaranty any results of your use of the Services (e.g., weight loss). HS specifically disclaims any knowledge of User allergies or adverse conditions that may arise from User’s use of Dietitians’ suggested information. Dietitians are not permitted to sell supplements or other products as part of the Services or otherwise via the Website or App, though Dietitians may recommend such supplements or products in a general sense as possible educational or informational value. HS makes no representation or warranty with respect to the information received by You from Dietitian and specifically disclaims all liability for any errors, inaccuracies or inadequacies in such information. User should always confirm any educational information received from Dietitian with User’s healthcare professional(s). The Services explicitly exclude the licensed practice of dietetics, medical nutrition therapy, medical advice, diagnosis or treatment. The Services are intended to educate users on nutrition and health-related topics that may affect their daily lives. Dietitians do not address User-specific issues or conditions or otherwise provide health advice as part of the Services. Neither the Services nor the Website or App constitute the practice of any health care advice, diagnosis or treatment. ALL INFORMATION PROVIDED BY DIETITIANS IN CONNECTION WITH THE SERVICES OR OTHERWISE VIA THE WEBSITE OR APP IS INTENDED TO BE FOR GENERAL INFORMATION PURPOSES ONLY AND IS IN NO WAY INTENDED TO CREATE A PHYSICIAN-PATIENT RELATIONSHIP AS DEFINED BY STATE AND FEDERAL LAW. THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL DIAGNOSIS OR TREATMENT AND RELIANCE ON ANY INFORMATION PROVIDED BY DIETITIANS IN CONNECTION WITH THE SERVICES IS SOLELY AT YOUR OWN RISK. Information or advice provided by Dietitians as part of the Services is provided solely by such Dietitians and is not provided by HS. Dietetic professionals may hold different professional opinions as to similar topics and, provided such opinions are reasonably held, the fact that two or more dietitic professionals give different information on similar topics does not necessarily indicate that the information provided is defective or inaccurate. Seek the advice of a qualified health care provider for any questions regarding personal health or medical conditions. Never disregard, avoid or delay in obtaining medical advice from your doctor or other qualified health care provider because of something you have read or received from a Dietitian as part of the Services. If you have or suspect that you have a medical problem or condition, please contact a qualified health care professional immediately. If you are in the United States and are experiencing a medical emergency, you should call 911 and/or undertake such other activities or communications which you believe to be applicable to the condition you are experiencing. You should never rely on HS, a Dietitian or the Services in a potential or actual medical emergency.
4.1 Fees. User will pay all fees specified in all submitted Order Forms; provided that such fees are subject to change without advanced notice to User. Fees for monthly subscription periods will be charged in advance monthly. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Payment. You will pre-pay the fees for the Services. All payments associated with the Purchased Services will be made via credit card, EFT or Paypal. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.3 Suspension of Service and Acceleration. If any amount owing by You under this Agreement for Purchased Services is overdue, We may, without limiting our other rights and remedies, suspend Our Services to You until such amounts are paid in full.
4.4 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with the Purchased Services hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.4, We will invoice You and You will pay that amount unless You provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
4.5 Future Enhancements. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
4.6 Monitoring. HS may, at its sole discretion, monitor User's use of the Services – including User's compliance with any contractual usage limits. User hereby consents to such monitoring.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Services and all associated software, including all of our related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2 License by You to Host User Data. You hereby grant Us and our Affiliates for the full duration of the Term a worldwide, royalty-free, sublicenseable, limited license to host, copy, transmit, distribute, share, back-up, store, and display all of your User Data: (a) as necessary for Us to provide the Services in accordance with this Agreement; (b) as necessary for Us to prevent or address service or technical problems, (c) as compelled by law in accordance with Section 6.3 below, or (d) as You authorize in writing. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any User Data.
5.3 License by You to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or any User relating to the operation of the Services.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes your User Data; our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those employees and contractors (including employees and contractors of Affiliates) who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.2.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Our Warranties. Except as otherwise stated herein, we warrant that we will not materially decrease the functionality of the Purchased Services. For any breach of the above warranty, your exclusive remedies are those described in Sections 10.3 and 10.4.
7.3 User Warranties. You hereby represent and warrant that: (i) You have obtained all necessary permissions and documents, including consent forms, licenses, agreements, and certifications, necessary to ensure that We can possess, have custody of, use, store, copy, distribute, and modify User Data in a manner consistent with the law and the provisions of this Agreement; (ii) You will at all times comply with all applicable laws, ordinances, codes, and regulations – including all applicable laws for processing and transferring User Data to Us in connection with the Services – in the performance of Your obligations and receipt of Services under the Agreement; and (iii) the User Data does not and shall not infringe upon or otherwise violate any third party Intellectual Property Rights.
7.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against You”), and we will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You with Your prior written consent, not to be unreasonably withheld or delayed, unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 7.2, (ii) obtain a license for Your continued use of that Service In accordance with this Agreement, or (iii) terminate Your current purchase for that Service upon 30 days’ written notice and refund You any prepaid fees covering Services not yet delivered. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement.
8.2 Indemnification by You. You will indemnify and hold Us harmless from and against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that your User Data, or Your use or any User's use of any Service in breach of this Agreement, infringes or misappropriates a third party’s Intellectual Property Rights or violates applicable law (a “Claim Against Us”), and will indemnify and hold Us harmless from and against any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We promptly give You written notice of the Claim Against Us.
8.3 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. HS’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY USER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HS shall not be liable to User or any third party for: (i) any Losses that User may suffer arising out of the use of, the inability to use, interruptions to, impairments to, or loss of use of any Services; (ii) any loss, failure, corruption, or inaccuracy of data or communications, including those related to User Data; (iii) any Losses related to User Data; (iv) interoperability, or lack thereof, of specific User applications or software; (v) Losses arising from any unauthorized access to User Data; (vi) any Losses related to damage to personal property or personal injury or death; or (vii) the cost of procurement of substitute goods, services, or technology.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERMS AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until the earlier of completion or termination of the final purchase hereunder (the “Term”).
10.2 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. HealthSoup may terminate this Agreement immediately, for its convenience, provided that We will refund you any fees paid for the Service in advance, pro-rated as of the effective date of such termination. You may terminate monthly subscription based Services at any time, for Your convenience, by contacting customer support at firstname.lastname@example.org, provided that You will not be refunded fees paid in advance for the monthly subscription period then in effect at the time of termination under this sentence.
10.3 Payment upon Termination. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the Services delivered prior to the effective date of termination.
10.4 Your Data Portability and Deletion. Upon request by you made within 30 days after the effective date of termination or expiration of this Agreement, we will make User Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide User Data, and will thereafter delete or destroy all copies of User Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
10.5 Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Payment upon Termination,” “Your Data Portability and Deletion,” and “General Provisions” will survive any termination or expiration of this Agreement.
11. GENERAL PROVISIONS
11.1 Notices. Notices given by Us to User will be given by email, by conventional mail, or by courier service. Notices will be sent to the email address or mailing address User provides to Us as part of the registration process, or to updated addresses which User provides to Us by notice given consistent with this provision. Notices given by User to Us must be given by email and addressed to email@example.com, by conventional mail, or courier service sent to 7762 Hathaway Park Ct, Dublin, Ohio 43016 or such updated addresses which We may provide User by notice given consistent with this provision. Notices will be deemed given the first business day after sending by email (provided that email shall not be sufficient for notices of termination or a claim for indemnification and such notices shall be sent both to the above mailing address as well as Dinsmore & Shohl LLP, 191 West Nationwide Blvd., Suite 300, Columbus, OH 43215, Attn: Brian C. Close), the second business day after mailing, the first business day after delivery by courier service, or the first business day after sending by confirmed facsimile.
11.2 Governing Law. The validity, construction and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the internal laws of the State of Ohio, excluding its principles of conflict of laws.
11.3 Dispute Resolution. Any disputed claim arising out of, or related to, this Agreement or any breach hereof shall be finally settled by arbitration on an individual basis only and shall not be consolidated or joined with or in any arbitration or other proceeding involving a claim of any other party. You and HS agree that the arbitrator shall have no authority to arbitrate any claim as a class action or in any other form other than on an individual basis. The arbitration shall be administered by the American Association (“AAA”) and conducted in English in Columbus, Ohio in accordance with AAA Arbitration Rules. In the event of any conflict between this Agreement and such rules, the provisions of this Agreement shall govern. Upon written notice by the claimant party to the other party of such claimant’s intention to arbitrate, each party shall select an arbitrator within ten (10) days of such notice, and within fifteen (15) days after their selection such arbitrators shall select a third arbitrator, who shall serve as chairperson, and the three arbitrators (each of whom shall be fluent in English) shall hear and determine the controversy. If any arbitrator is not appointed within such time limits, then such arbitrator shall be appointed by the AAA. The decision of a majority of the three arbitrators must contain written reasons, and shall be final and incontestably binding upon the parties and not subject to any rights of appeal. Judgment upon any award may be entered in any competent court. Each party shall pay all fees and expenses of the arbitrator selected by such party, and each shall share equally the fees and expenses of the third arbitrator. All awards made pursuant to any arbitration proceeding conducted hereunder shall be in U.S. dollars, and if an award is made to any claimant which is greater than any amount offered in writing by the opposing party in settlement of such claim or if the opposing party has made no offer of settlement, then the opposing party shall pay all of such claimant’s costs and expenses incurred in such arbitration, including reasonable attorneys’ fees, as well as all costs of arbitration, including all AAA fees and charges and the fees and expenses of all arbitrators. If no award is made to claimant or the amount of such award is equal to or less than any such amount offered in settlement, then the claimant shall pay the opposing party’s costs and expenses incurred in such arbitration, including reasonable attorneys’ fees, as well as all such costs of arbitration. Notwithstanding the foregoing, either party at all times shall have the right to seek collections or equitable remedies through the courts, including but not limited to injunctive relief, or otherwise as it deems necessary or desirable to protect its confidential and/or proprietary rights, trademarks or other intellectual property rights. The exercise by a party of any rights shall be without prejudice to any other rights that such party may have at law or in equity, under this Agreement or otherwise, and shall not give rise to any rights or claims by the other party for compensation or damages, including loss of profits, customers, goodwill, capital investment or otherwise.
11.5 Assignment. Except as set forth below, User shall not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). We may assign any of Our rights or obligations hereunder without User’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.