Health Movement
TERMS OF Service
Health Movement provides the Services
for informational purposes only. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND
SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. Health Movement is not
a medical professional, and Health Movement does not provide medical services
or render medical advice. The Services are not a substitute for the advice of a
medical professional, and the information made available on or through the
Services should not be relied upon when making medical decisions, or to
diagnose or treat a medical or health condition. If you require medical advice
or services, You should consult a medical professional. YOUR USE OF THE
SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND HEALTH
MOVEMENT.
YOU HEREBY AGREE THAT, BEFORE USING
THE SERVICES, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK
FOR PROBLEMS RESULTING FROM EXERCISE OR CHANGES IN YOUR DIET OR SLEEP.
1.
AGREEMENT
These Terms of Service (the "Agreement")
constitute a legally binding agreement by and between Health Movement, LLC
(hereinafter, "Health Movement") and you ("You"
or "Your") concerning Your use of Health Movement's website
located at http://www. HealthMovement.com / (the "Website")
and Health Movement mobile phone applications (the "Applications")
and the services available through the Website and Applications (the "Services").
By using the Services, You represent and warrant that You have read and
understand, and agree to be bound by, this Agreement and Health Movement's Privacy Policy, which
is incorporated herein by reference and made part of this Agreement. IF YOU DO
NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU
MAY NOT USE THE SERVICES.
2.
PRIVACY POLICY
By using the Services, You consent to
the collection and use of certain information about You, as specified in
the Privacy Policy. Use
of information we collect now is subject to the Privacy Policy in effect at the
time such information is used.
3.
CHANGES TO AGREEMENT
HEALTH MOVEMENT RESERVES THE RIGHT TO
CHANGE THIS AGREEMENT AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY: (I) THE
POSTING OF A NEW VERSION; AND/OR (II) A CHANGE NOTICE ON THE WEBSITE OR
APPLICATION. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY.
You will be deemed to have agreed to any such modification or amendment by Your
decision to continue using the Services following the date in which the
modified or amended Agreement is posted.
4.
ELIGIBILITY
BY USING THE SERVICES, YOU REPRESENT
AND WARRANT THAT YOU ARE AT LEAST 13 YEARS OLD AND ARE OTHERWISE LEGALLY
QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. This Agreement
is void where prohibited.
5.
LICENSE
Subject to Your compliance with the
terms and conditions of this Agreement, Health Movement grants You a
non-exclusive, non-sublicensable, revocable, non-transferable license to use
the Services through the Website or by downloading and installing our
Applications. THE SERVICES ARE FOR YOUR PERSONAL AND NON-COMMERCIAL USE. The
Services, including the Website and the Applications, or any portion thereof,
may not be reproduced, duplicated, copied, modified, sold, resold, distributed,
visited, or otherwise exploited for any commercial purpose without the express
written consent of Health Movement. Except as expressly set forth herein, this
Agreement grants You no rights in or to the intellectual property of Health
Movement or any other party. The license granted in this section is conditioned
on Your compliance with the terms and conditions of this Agreement. In the
event that You breach any provision of this Agreement, Your rights under this
section will immediately terminate.
When accessing the Services through
the Applications that were downloaded from an app store or app distribution
platform, such as the Apple App Store or Google Play, (the .App Provider.), You
acknowledge and agree that: (a) this Agreement are concluded between us, and
not with the App Provider, and that we are solely responsible for the
Applications (not the App Provider); (b) the App Provider has no obligation to
furnish any maintenance and support services with respect to the Applications;
(c) in the event of any failure of the Applications to conform to any
applicable warranty, (i) you may notify the App Provider and the App Provider
will refund the purchase price for the Applications to you (if applicable),
(ii) to the maximum extent permitted by applicable law, the App Provider will
have no other warranty obligation whatsoever with respect to the Applications,
and (iii) any other claims, losses, liabilities, damages, costs or expenses
attributable to any failure to conform to any warranty will be our
responsibility; (d) the App Provider is not responsible for addressing any claims
you have or any claims of any third party relating to the Applications or your
possession and use of the Applications, including, but not limited to: (i)
product liability claims; (ii) any claim that the app fails to conform to any
applicable legal or regulatory requirement; and (iii) claims arising under
consumer protection or similar legislation; (e) in the event of any third party
claim that the Applications or your possession and use of that Applications
infringes that third party.s intellectual property rights, we will be
responsible for the investigation, defense, settlement and discharge of any
such intellectual property infringement claim to the extent required by this
Agreement; (f) the App Provider, and its subsidiaries, are third party beneficiaries
of this Agreement as it relates to your license of the Applications, and that,
upon your acceptance of the terms and conditions of this Agreement, the App
Provider will have the right (and will be deemed to have accepted the right) to
enforce this Agreement as related to your license of the Applications against
you as a third party beneficiary thereof; and (g) you must also comply with all
applicable third party terms of service when using the Applications.
6.
THE SERVICE DOES NOT PROVIDE PROFESSIONAL MEDICAL SERVICES
OR ADVICE; NO DOCTOR-PATIENT RELATIONSHIP
Health Movement provides the Services
for informational purposes only. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND
SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. Health Movement is not
a medical professional, and Health Movement does not provide medical services
or render medical advice. The Services are not a substitute for the advice of a
medical professional, and the information made available on or through the
Services should not be relied upon when making medical decisions, or to
diagnose or treat a medical or health condition. If you require medical advice
or services, You should consult a medical professional. YOUR USE OF THE
SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND HEALTH
MOVEMENT.
YOU HEREBY AGREE THAT, BEFORE USING
THE SERVICES, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK
FOR PROBLEMS RESULTING FROM EXERCISE OR CHANGES IN YOUR DIET.
7.
HEALTH SCORE
Health Movement's Health Score
contains a combination of health information entered directly by Health
Movement and health information entered by Health Movement members ("Health
Score"). Any Health Movement member can contribute health information
to the Health Score, as well as edit existing health information. Please be
advised that health information found in Health Movement's Health Score has not
been reviewed by persons with the expertise required to provide You with
complete, accurate, or reliable information. HEALTH MOVEMENT DOES NOT (I)
GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY HEALTH INFORMATION
IN THE HEALTH SCORE; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE
ACCURACY OR RELIABILITY OF ANY SUCH HEALTH INFORMATION. UNDER NO CIRCUMSTANCES
WILL HEALTH MOVEMENT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR
RELIANCE ON HEALTH INFORMATION. You are solely responsible for ensuring that
any health information in the Health Score is accurate, complete and useful. Health
information in the Health Score may not be reproduced, duplicated, copied,
modified, sold, resold, distributed, visited, or otherwise exploited for any
commercial purpose without the express written consent of Health Movement.
8.
RELIANCE ON THIRD-PARTY CONTENT
Opinions, advice, statements, or
other information, including, without limitation, food, nutrition, exercise and
sleep data, made available by means of the Services by third parties, are those
of their respective authors, and should not necessarily be relied on. Such
authors are solely responsible for such content. HEALTH MOVEMENT DOES NOT: (I)
GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY
INFORMATION ON THE SERVICE; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR
THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A
THIRD-PARTY BY MEANS OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL HEALTH
MOVEMENT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON
INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES OR TRANSMITTED TO OR BY ANY
THIRD-PARTY. You also understand that by accessing and using the Services, You
may encounter information, materials and subject matter that You or others may
deem offensive, indecent, or objectionable. You agree to use the Services at
Your sole risk and that Health Movement and its affiliates, partners, suppliers
and licensors shall have no liability to You for information, material or
subject matter that is found to be offensive, indecent, or objectionable.
9.
RISK ASSUMPTION
YOU KNOWINGLY AND FREELY ASSUME ALL
RISK WHEN USING THE WEBSITE, APPLICATIONS AND SERVICES. YOU, ON BEHALF OF
YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY
AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY HEALTH
MOVEMENT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES,
REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS,
ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL
DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD
PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
10.
USER INFORMATION; PASSWORD PROTECTION
In connection with Your use of
certain Services, You are required to complete a registration form. You
represent and warrant that all user information You provide on the registration
form or otherwise in connection with Your use of the Services will be current,
complete and accurate, and that You will update that information as necessary
to maintain its completeness and accuracy by visiting your personal profile.
For additional information, see the section concerning "User Ability to
Access, Update, and Correct Personal Information" in Health Movement's Privacy Policy.
You will also be asked to provide a
user name and password in connection with Your use of certain of the Services.
You are entirely responsible for maintaining the confidentiality of Your
password. You may not use the account, user name, or password of any other
Member at any time. You agree to notify Health Movement immediately of any
unauthorized use of Your account, user name, or password. Health Movement shall
not be liable for any loss that You incur as a result of someone else using
Your password, either with or without Your knowledge. You may be held liable
for any losses incurred by Health Movement, its affiliates, officers,
directors, employees, consultants, agents, and representatives due to someone
else.s use of Your account or password.
11.
PUBLIC PROFILES; INFORMATION PROVIDED BY MEMBERS
As part of registration, members must
create public profiles, which may contain certain identifying information (such
as age, height, weight, gender) In addition, members have the option to post
photographs, videos and other information (such as likes and dislikes) on their
public profiles. Health Movement relies on its members to provide current and
accurate information, and Health Movement does not, and cannot, investigate
information contained in member public profiles. Accordingly, Health Movement
must assume that information contained in each member public profile is current
and accurate. HEALTH MOVEMENT DOES NOT REPRESENT, WARRANT OR GUARANTEE THE
CURRENCY OR ACCURACY OF PUBLIC PROFILE INFORMATION, AND HEREBY DISCLAIMS ALL
RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION PROVIDED BY MEMBERS BY MEANS
OF PUBLIC PROFILES OR OTHERWISE IN CONNECTION WITH THE SERVICES.
12.
YOUR INTERACTIONS WITH OTHER MEMBERS
YOU ARE SOLELY RESPONSIBLE FOR YOUR
INTERACTIONS WITH OTHER MEMBERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT HEALTH
MOVEMENT HAS NOT, AND DOES NOT, IN ANY WAY: (A) SCREEN ITS MEMBERS; (B) INQUIRE
INTO THE BACKGROUNDS OF ITS MEMBERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF
ITS MEMBERS, INCLUDING WITHOUT LIMITATION INFORMATION OR REPRESENTATIONS
CONTAINED IN PUBLIC PROFILES. YOU HEREBY AGREE TO EXERCISE REASONABLE
PRECAUTION IN ALL INTERACTIONS WITH OTHER MEMBERS, PARTICULARLY IF YOU DECIDE
TO MEET ANOTHER MEMBER IN PERSON. HEALTH MOVEMENT DOES NOT REPRESENT, WARRANT,
ENDORSE OR GUARANTEE THE CONDUCT OF ITS MEMBERS OR THEIR COMPATIBILITY WITH
YOU. IN NO EVENT SHALL HEALTH MOVEMENT BE LIABLE FOR INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY MEMBER.S
CONDUCT IN CONNECTION WITH SUCH MEMBER.S USE OF THE SERVICES, INCLUDING,
WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL
DISTRESS, LOSS OF SERVICES OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS
OR MEETINGS BETWEEN MEMBERS. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN
USING THE WEBSITE, APPLICATIONS AND SERVICES.
13.
MEMBER DISPUTES
Health Movement reserves the right,
but disclaims any perceived, implied or actual duty, to monitor disputes
between members. You agree to hold Health Movement harmless in connection with
any dispute or claim You make against any other member.
14.
CONSENT TO RECEIVE EMAIL FROM HEALTH MOVEMENT
In providing the Services, You may
receive periodic email communications regarding the Services, new product
offers and information regarding the Services, which are part of the Services
and which You cannot opt out of receiving. You may also receive periodic
promotions and other offers or materials Health Movement believes might be of
interest to You. You can opt-out of receiving these promotional messages at any
time by (a) following the unsubscribe instructions contained in each
newsletter; or (b) changing the email preferences in Your account.
15.
CONSENT TO RECEIVE EMAIL COMMUNICATIONS FROM MEMBERS
By finding and connecting with Your
friends and other members, You may receive electronic communications, including
email and instant messages from other Website members. You can manage the
messages You receive from other members by changing the messaging preferences
in Your account.
16.
THIRD-PARTY WEBSITES
The Service includes links to
websites of third parties ("Third-Party Websites"), some of
whom may have established relationships with Health Movement and some of whom
may not. Health Movement does not have control over the content and performance
of Third-Party Websites. HEALTH MOVEMENT HAS NOT REVIEWED, AND CANNOT REVIEW OR
CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR
SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, HEALTH
MOVEMENT DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE
ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION
MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. HEALTH
MOVEMENT DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY
FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING
FROM YOUR USE OF THIRD-PARTY WEBSITES.
YOU AGREE THAT, WHEN LINKING TO OR
OTHERWISE ACCESSING OR USING A THIRD-PARTY WEBSITE, YOU ARE RESPONSIBLE FOR:
(I) TAKING PRECAUTIONS AS NECESSARY TO PROTECT YOU AND YOUR COMPUTER SYSTEMS
FROM VIRUSES, WORMS, TROJAN HORSES, MALICIOUS CODE AND OTHER HARMFUL OR
DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT IS
OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR THAT
CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (III)
ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR
PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY AND OTHER PROPRIETARY
RIGHTS OF THIRD PARTIES, OR THAT IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS,
STATED OR UNSTATED; (IV) ALL FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD
PARTIES RESULTING FROM TRANSACTIONS OR OTHER ACTIVITIES; AND (V) READING AND
UNDERSTANDING ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE
THIRD-PARTY WEBSITES.
17.
THIRD-PARTY SERVICES
Certain features, aspects, products
and services offered through the Services are provided, in whole or in part, by
third parties ("Third-Party Services" as provided by "Third-Party
Service Providers"). In order to use Third-Party Services, You may be
required to enter into additional terms and conditions with Third-Party Service
Providers. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THOSE
ADDITIONAL TERMS AND CONDITIONS, YOU MAY NOT USE THE RELATED THIRD-PARTY
SERVICES. In the event of any inconsistency between terms and conditions
relating to Third-Party Services and the terms and conditions of this
Agreement, those additional terms and conditions will control, although only
with respect to such Third-Party Services. The providers of Third-Party Service
Providers may collect and use certain information about you, as specified in
the Third-Party Service Providers. privacy policies. Prior to providing
information to any Third-Party Service Provider, you should review their privacy
policy. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO THE TERMS OF A THIRD-PARTY
SERVICE PROVIDER.S PRIVACY POLICY, YOU SHOULD NOT USE THE RELATED THIRD-PARTY
SERVICES. HEALTH MOVEMENT HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR
ANY OF YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE PROVIDERS.
18.
USER CONTENT
"User Content" is
any content, materials or information (e.g., any text, information, photos,
images, video, and other content and material, including age, height, weight,
gender, sleep, exercise, and nutritional information contributed to the Health
Score) that You upload or post to, or transmit, display, perform or distribute
by means of, the Services, whether in connection with Your use of Website,
Application, or through the use of any Third Party Websites or Third Party
Services or otherwise. You hereby grant Health Movement and its officers,
directors, employees, agents, affiliates, representatives, service providers,
partners, sublicensees, successors, and assigns (collectively, the "Health
Movement Parties") a perpetual, fully paid-up, worldwide, sublicensable,
irrevocable, assignable license to copy, distribute, publish, transmit,
publicly display or perform, edit, modify, translate, reformat and otherwise
use User Content in connection with the operation of the Services or any other
similar services or related business, in any medium now existing or later
devised, including without limitation in advertising and publicity. You further
agree that this license includes the right for the Health Movement Parties to
publish, display or otherwise use and make available your User Content and
possibly your name and/or any user name of yours in connection with their
exercise of the license granted under this section. You agree to waive, and
hereby waive, any claims arising from or relating to the exercise by the Health
Movement Parties of the rights granted under this section, including without
limitation any claims relating to your rights of personal privacy and
publicity. You will not be compensated for any exercise of the license granted
under this section.
You hereby represent and warrant that
You own all rights, title and interest in and to User Content or are otherwise
authorized to grant the rights provided the Health Movement Parties under this
section. You represent and warrant that, when using the Website, Applications
and Services, You will obey the law and respect the intellectual property
rights of others. Your use of the Website and Services is at all times governed
by and subject to laws regarding copyright ownership and use of intellectual
property generally. You agree not to upload, post, transmit, display, perform
or distribute any content, information or other materials in violation of any
third party.s copyrights, trademarks, or other intellectual property or
proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY
LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE
WEBSITE, APPLICATIONS AND SERVICES. YOUR BEAR THE SOLE BURDEN OF PROVING THAT
CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY
RIGHTS.
Health Movement reserves the right to
(i) remove, suspend, edit or modify any User Content in its sole discretion,
including without limitation any User Content at any time, without notice to
you and for any reason (including, but not limited to, upon receipt of claims
or allegations from third parties or authorities relating to such User Content
or if Health Movement is concerned that you may have violated these Terms of
Use), or for no reason at all and (ii) to remove, suspend or block any User
Content submissions. Health Movement also reserves the right to access, read,
preserve, and disclose any information as Health Movement reasonably believes
is necessary to (i) satisfy any applicable law, regulation, legal process or governmental
request, (ii) enforce these Terms of Use, including investigation of potential
violations hereof, (iii) detect, prevent, or otherwise address fraud, security
or technical issues, (iv) respond to user support requests, or (v) protect the
rights, property or safety of Health Movement, its users and the public.
19.
PUBLIC FORUMS
"Public Forum" is
any area, site or feature offered as part of the Services (including without
limitation public profiles, discussion forums, message boards, blogs, chat
rooms, emails or instant messaging features) that enables You (a) to upload,
submit, post, display, perform, distribute and/or view User Content, and/or (b)
to communicate, share, or exchange User Content with other members or visitors.
You acknowledge that Public Forums, and features contained therein, are for
public and not private communications. You further acknowledge that anything
You upload, submit, post, transmit, communicate, share or exchange by means of
any Public Forum may be viewed on the Internet by the general public, and
therefore, You have no expectation of privacy with regard to any such
submission or posting. You are, and shall remain, solely responsible for the
User Content you upload, submit, post, transmit, communicate, share or exchange
by means of any Public Forum and for the consequences of submitting or posting
same. HEALTH MOVEMENT DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO
MONITOR PUBLIC FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR
LIABILITY FOR INFORMATION PROVIDED THEREON.
20.
YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that you may
be held legally responsible for damages suffered by other members or third
parties as the result of Your remarks, information, feedback or other content
posted or made available on the Services that is deemed defamatory or otherwise
legally actionable. Under the Federal Communications Decency Act of 1996, Health
Movement is not legally responsible, nor can it be held liable for damages of
any kind, arising out of or in connection to any defamatory or otherwise
legally actionable remarks, information, feedback or other content posted or
made available on the Services.
21.
OBJECTIONABLE CONTENT
You represent and warrant that you
shall not use the Services to upload, post, transmit, display, perform or
distribute any content, information or materials that: (a) are libelous,
defamatory, abusive, or threatening, excessively violent, harassing, obscene,
lewd, lascivious, filthy, or pornographic; (b) constitute child pornography;
(c) solicit personal information; (d) incite, encourage or threaten physical
harm against another; (e) promote or glorify racial intolerance, use hate
and/or racist terms, or signify hate towards any person or group of people; (f)
glamorize the use of hard core illegal substances and drugs; (g) advertise or
otherwise solicit funds or constitute a solicitation for goods or services; (h)
violate any provision of this Agreement or any other Health Movement agreement,
guidelines or policy; or (i) is generally offensive or in bad taste, as
determined by Health Movement (collectively, "Objectionable Content").
HEALTH MOVEMENT DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE
CONTENTS OF THE SERVICES AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR
LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other
remedies, Health Movement reserves the right to terminate Your use of the
Services or Your uploading, posting, transmission, display, performance or
distribution of Objectionable Content. Health Movement, in its sole discretion,
may delete any Objectionable Content from its servers. Health Movement intends
to cooperate fully with any law enforcement officials or agencies in the
investigation of any violation of this Agreement or of any applicable laws.
22.
PROHIBITED USES
Health Movement imposes certain
restrictions on Your use of the Services. You represent and warrant that you
will not: (a) "stalk" or otherwise harass any person, or contact any
person who has requested not to be contacted; (b) provide false, misleading or
inaccurate information to Health Movement or any other member; (c) impersonate,
or otherwise misrepresent affiliation, connection or association with, any
person or entity; (d) create more than one unique public profile; (e) harvest
or otherwise collect information about Health Movement users, including email
addresses and phone numbers; (f) use or attempt to use any engine, software,
tool, agent, or other device or mechanism (including without limitation
browsers, spiders, robots, avatars, or intelligent agents) to harvest or
otherwise collect information from the Website for any use, including without
limitation use on third-party websites; (g) access content or data not intended
for You, or log onto a server or account that You are not authorized to access;
(h) attempt to probe, scan, or test the vulnerability of the Services, the
Website, the Applications, or any associated system or network, or breach
security or authentication measures without proper authorization; (i) interfere
or attempt to interfere with the use of the Website, the Applications or the
Services by any other user, host or network, including, without limitation by
means of submitting a virus, overloading, "flooding,"
"spamming," "mail bombing," or "crashing"; (j)
use the Services to send unsolicited e-mail, including without limitation promotions
or advertisements for products or services; (k) forge any TCP/IP packet header
or any part of the header information in any e-mail or in any uploading or
posting to, or transmission, display, performance or distribution by means of,
the Services; (l) post or transmit any unsolicited advertising, promotional
materials, "junk mail", "spam," "chain letters,"
"pyramid schemes" or any other form of solicitation or any non-resume
information such as opinions or notices, commercial or otherwise; or (m) attempt
to modify, reverse-engineer, decompile, disassemble or otherwise reduce or
attempt to reduce to a human-perceivable form any of the source code used by
the Health Movement Parties in providing the Website or Applications. Any
violation of this section may subject You to civil and/or criminal liability.
23.
INTELLECTUAL PROPERTY
a.
Software
You acknowledge and agree that the
Applications and all intellectual property rights associated therewith are, and
shall remain, the property of Health Movement. Furthermore, You acknowledge and
agree that the source and object code of the Applications and the format,
directories, queries, algorithms, structure and organization of the
Applications are the intellectual property and proprietary and confidential information
of Health Movement and its affiliates, licensors and suppliers. Except as
expressly stated in this Agreement, You are not granted any intellectual
property rights in or to the Applications by implication, estoppel or other
legal theory, and all rights in and to the Applications not expressly granted
in this Agreement are hereby reserved and retained by Health Movement.
The Applications may utilize or
include third party software that is subject to third party license terms
("Third Party Software"). You acknowledge and agree that Your right
to use such Third Party Software as part of the Applications is subject to and
governed by the terms and conditions of the third party license applicable to
such Third Party Software. In the event of a conflict between the terms of this
Agreement and the terms of such third party licenses, the terms of the third
party licenses shall control with regard to Your use of the relevant Third
Party Software.
b.
Trademarks
Health Movement, HealthMovement.com,
HLTHMVMNT, HLTHMVMNT.com and the Health Movement and HLTHMVMNT logos
(collectively, the "Health Movement Marks") are trademarks or
registered trademarks of Health Movement, LLC. Other trademarks, service marks,
graphics, logos and domain names appearing on the Services may be the
trademarks of third-parties. Neither Your use of the Services, nor this
Agreement, grant You any right, title or interest in or to, or any license to
reproduce or otherwise use, the Health Movement Marks or any third-party
trademarks, service marks, graphics, logos or domain names. You agree that any
goodwill in the Health Movement Marks generated as a result of Your use of the
Services will inure to the benefit of Health Movement, LLC, and You agree to
assign, and hereby do assign, all such goodwill to Health Movement, LLC. You
shall not at any time, nor shall You assist others to, challenge Health
Movement, LLC.s right, title, or interest in or to, or the validity of, the Health
Movement Marks.
c.
Copyrighted Materials; Copyright Notice
All content and other materials
available through the Website and Services, including without limitation the Health
Movement logo, design, text, graphics, and other files, and the selection,
arrangement and organization thereof, are either owned by Health Movement, LLC
or are the property of Health Movement.s licensors and suppliers. Except as
explicitly provided, neither Your use of the Services nor this Agreement grant
You any right, title or interest in or to any such materials.
d.
DMCA Policy
If you have evidence, know, or have a
good faith belief that your rights or the rights of a third party have been
violated and you want Health Movement to delete, edit, or disable the material
in question, you must provide Health Movement with all of the following
information: (a) a physical or electronic signature of a person authorized to
act on behalf of the owner of the exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed, or,
if multiple copyrighted works are covered by a single notification, a
representative list of such works; (c) identification of the material that is
claimed to be infringed or to be the subject of infringing activity and that is
to be removed or access to which is to be disabled, and information reasonably
sufficient to permit Health Movement to locate the material; (d) information
reasonably sufficient to permit Health Movement to contact you, such as an
address, telephone number, and if available, an electronic mail address at
which you may be contacted; (e) a statement that you have a good faith belief
that use of the material in the manner complained of is not authorized by the
copyright owner, its agent, or the law; and (f) a statement that the
information in the notification is accurate, and under penalty of perjury, that
you are authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed. For this notification to be effective, you must provide it
to Health Movement.s designated agent at:
·
Attn: Copyright Agent
·
Health Movement LLC
·
397 N 600 E
·
Payson, UT 84651
24.
DISCLAIMERS; LIMITATION OF LIABILITY
a.
NO WARRANTIES.
HEALTH MOVEMENT, ON BEHALF OF ITSELF
AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY
DISCLAIMS ALL WARRANTIES. THE WEBSITE, APPLICATIONS AND SERVICES ARE PROVIDED
"AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED
BY LAW, HEALTH MOVEMENT, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE
PROVIDERS, LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. NEITHER HEALTH MOVEMENT NOR ITS THIRD-PARTY SERVICE
PROVIDERS, LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE, APPLICATIONS OR
THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE,
APPLICATIONS OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
b.
YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE
WEBSITE, APPLICATIONS AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD HEALTH
MOVEMENT OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS
APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO
OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY
OF YOUR COMPUTERS OR DATA. THE WEBSITE, APPLICATIONS AND SERVICES MAY CONTAIN
BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE
THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF
ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS
YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL
STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
c.
LIMITATION OF LIABILITY
THE LIABILITY OF HEALTH MOVEMENT AND
ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HEALTH MOVEMENT OR ITS
THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL
OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD
FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE
FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO HEALTH
MOVEMENT OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING
OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE, APPLICATIONS OR SERVICES.
THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF
BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
ADDITIONALLY, THE MAXIMUM LIABILITY OF HEALTH MOVEMENT AND ITS THIRD-PARTY
SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL
BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE
ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN
BETWEEN HEALTH MOVEMENT AND YOU. THE WEBSITE, APPLICATIONS AND SERVICES WOULD
NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
d.
APPLICATION
THE ABOVE DISCLAIMERS, WAIVERS AND
LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY
OTHER LIMITATION OF LIABILITY IN THIS AGREEMENT, ANY OTHER AGREEMENT BETWEEN
YOU AND HEALTH MOVEMENT OR BETWEEN YOU AND ANY OF HEALTH MOVEMENT.S THIRD-PARTY
SERVICE PROVIDERS, LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW
THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN
DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY
MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE
FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM
EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. HEALTH
MOVEMENT.S THIRD-PARTY SERVICE PROVIDERS LICENSORS AND SUPPLIERS ARE INTENDED
THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE
SERVICES OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED
IN THIS SECTION.
25.
YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your
use of the Website, Applications and Services will be in accordance with this
Agreement and any other Health Movement policies and guidelines, and with any
applicable laws or regulations.
26.
INDEMNITY BY YOU
Without limiting any indemnification
provision of this Agreement, You agree to defend, indemnify and hold harmless Health
Movement and its officers, directors, employees, agents, affiliates,
representatives, sublicensees, successors, assigns, and Third-Party Service
Providers (collectively, the "Indemnified Parties") from and
against any and all claims, actions, demands, causes of action and other
proceedings (collectively, "Claims"), including but not
limited to legal costs and fees, arising out of or relating to: (i) Your breach
of this Agreement, including without limitation any representation or warranty
contained in this Agreement; (ii) Your access to or use of the Website,
Applications or Services; (iii) Your provision to Health Movement or any of the
Indemnified Parties of information or other data; (iv) Your violation or
alleged violation of any foreign or domestic, federal, state or local law or
regulation; or (v) Your violation or alleged violation of any third party.s
copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnified Parties will have the
right, but not the obligation, to participate through counsel of their choice
in any defense by You of any Claim as to which You are required to defend,
indemnify or hold harmless the Indemnified Parties. You may not settle any
Claim without the prior written consent of the concerned Indemnified Parties.
27.
GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, including without
limitation this Agreement's interpretation, shall be treated as though this
Agreement were executed and performed in San Francisco, California and shall be
governed by and construed in accordance with the laws of the State of
California without regard to its conflict of law principles. ANY CAUSE OF
ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THIS AGREEMENT
MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE
FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET
FORTH IN ABOVE. The language in this Agreement shall be interpreted in
accordance with its fair meaning and not strictly for or against either party.
a.
Requirement of Arbitration.
You agree that any dispute, of any
nature whatsoever, between You and Health Movement arising out of or relating
to this Agreement, shall be decided by neutral, binding arbitration before a
representative of JAMS in San Francisco, California (unless You and Health Movement
mutually agree to a different arbitrator), who shall render an award in
accordance with the substantive laws of California and JAMS. Streamlined
Arbitration Rules & Procedures. A final judgment or award by the arbitrator
may then be duly entered and recorded by the prevailing party in the
appropriate court as final judgment. The arbitrator shall award costs
(including, without limitation, the JAMS. fee and reasonable attorney.s fees)
to the prevailing party.
b.
Remedies in Aid of Arbitration; Equitable Relief.
This agreement to arbitrate will not
preclude You or Health Movement from seeking provisional remedies in aid of
arbitration, including without limitation orders to stay a court action, compel
arbitration or confirm an arbitral award, from a court of competent
jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or
Health Movement from applying to a court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED
UNDER THIS SUBSECTION REGARDING .EQUITABLE RELIEF. WILL BE THE FEDERAL AND
STATE COURTS LOCATED IN SAN FRANCISCO, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY
OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
28.
TERMINATION
a.
Termination; Survival
Either party may terminate this
Agreement and its rights hereunder at any time, for any or no reason at all, by
providing to the other party notice of its intention to do so in accordance
with this Agreement. This Agreement shall automatically terminate in the event
that You breach any of this Agreement.s representations, warranties or
covenants. Such termination shall be automatic, and shall not require any
action by Health Movement. Upon termination, all rights, licenses and
obligations created by this Agreement will terminate, except that Sections 1-4,
6-13, 16-30 will survive any termination of this Agreement.
b.
Effect of Termination
Any termination of this Agreement
automatically terminates all rights and licenses granted to You under this
Agreement, including all rights to use the Website, Applications and Services.
Subsequent to termination, Health Movement reserves the right to exercise
whatever means it deems necessary to prevent Your unauthorized use of the
Website,, Applications and Services, including without limitation technological
barriers such as IP blocking and direct contact with Your Internet Service
Provider.
c.
Legal Action
If Health Movement, in Health
Movement.s discretion, takes legal action against You in connection with any
actual or suspected breach of this Agreement, Health Movement will be entitled
to recover from You as part of such legal action, and You agree to pay, Health
Movement.s reasonable costs and attorneys. fees incurred as a result of such legal
action. The Health Movement Parties will have no legal obligation or other
liability to You or to any third party arising out of or relating to any
termination of this Agreement.
29.
NOTICES
All notices required or permitted to
be given under this Agreement must be in writing. Health Movement shall give
any notice by email sent to the most recent email address, if any, provided by
You to Health Movement. You agree that any notice received from Health Movement
electronically satisfies any legal requirement that such notice be in writing.
YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE
WITH HEALTH MOVEMENT IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED
EFFECTIVE UPON THE SENDING BY HEALTH MOVEMENT OF AN EMAIL TO THAT ADDRESS. You
shall give any notice to Health Movement by means of: (1) U.S. mail, postage
prepaid, to Health Movement LLC, 397 N 600 E Payson, UT 84651; or (2) email to:
contact@HealthMovement.com. Notice to Health Movement shall be effective upon
receipt of notice by Health Movement.
30.
GENERAL
This Agreement constitutes the entire
agreement between Health Movement and You concerning Your use of the Services.
This Agreement may only be modified by a written amendment signed by an
authorized executive of Health Movement or by the unilateral amendment of this
Agreement by Health Movement and by the posting by Health Movement of such
amended version. If any part of this Agreement is held invalid or
unenforceable, that part will be construed to reflect the parties. original
intent, and the remaining portions will remain in full force and effect. A
waiver by either party of any term or condition of this Agreement or any breach
thereof, in any one instance, will not waive such term or condition or any
subsequent breach thereof. Health Movement may assign or transfer this
Agreement at any time, with or without notice to You. This Agreement and all of
Your rights and obligations hereunder will not be assignable or transferable by
You without the prior written consent of Health Movement. This Agreement will
be binding upon and will inure to the benefit of the parties, their successors
and permitted assigns. You and Health Movement are independent contractors, and
no agency, partnership, joint venture or employee-employer relationship is
intended or created by this Agreement. Except for the Health Movement Parties
and the Indemnified Parties as and to the extent set forth in Sections 18, 21,
25 and 28(c), and Health Movement.s licensors and suppliers as and to the
extent expressly set forth in Section 23, there are no third-party
beneficiaries to this Agreement. You acknowledge and agree that any actual or
threatened breach of this Agreement or infringement of proprietary or other
third party rights by You would cause irreparable injury to Health Movement and
Health Movement.s licensors and suppliers, and would therefore entitle Health
Movement or Health Movement.s licensors or suppliers, as the case may be, to
injunctive relief. The headings in this Agreement are for the purpose of
convenience only and shall not limit, enlarge, or affect any of the covenants,
terms, conditions or provisions of this Agreement.
EFFECTIVE DATE:
August 1, 2013