We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms at any time. You should check these Terms periodically for changes. By using this Application after we post any changes to these Terms, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to these Terms, you should not use our Services and, if applicable, you should arrange to cancel your registered user account or subscription with us.
1. Scope of Terms
Unless we indicate otherwise, these Terms apply to your use of the Services which are owned or operated by Habitz, Inc. and our affiliates (collectively, “we,” “us,” or “our). For purposes of these Terms, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with Habitz, Inc.
2. Terms — In General
By using the Services, you agree to be legally bound and to abide by these, just as if you had signed this agreement. If you do not comply with these Terms at any time, we reserve the right, if applicable, to terminate your password, user account, and/or access to Services (or any part thereof). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice. If you do not abide by the provisions of these Terms, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to the Services. Further, you agree that we shall not be liable to you or any third- party for any termination or cancellation of your access to, or use of, the Services. From time to time, we may supplement these Terms with additional terms and conditions pertaining to specific content, activities or events (“Additional Terms”). Such Additional Terms may be placed on The Services to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms. If you are a parent and wish to engage your children into using Habitz, you may create a family account that can be accessed and used by your children. By doing so, you are assuming all the responsibilities and liabilities under these Terms on behalf of your children, when they use the Services.
3. Restrictions on Use of Services
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access and use The Services and the material provided hereon for your personal, noncommercial use, provided that you comply fully with the provisions of these Terms. You acknowledge that The Services contains information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on The Services. You may not copy, modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded and saved on your mobile device or computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or reverse engineering or attempt to extract the source code is strictly prohibited unless you receive our prior written consent.
4. Becoming a Registered User
There is no cost to become a registered user of The Services. You do not have to become a registered user to use The Services. However, if you do not register, you may be precluded from using certain products, offerings, features, or resources of The Services. Without limiting any other provision of these Terms, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of The Services (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a registered user of The Service, except as permitted under the Services. You further agree not to register for more than one account, create an account on behalf of someone else, except as permitted under the Services, or create a false or misleading identity on The Services.
6. Conduct Guidelines
You acknowledge that all Content posted, emailed, or otherwise transmitted to or on The Services, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the “Postings”), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to The Services. We do not control the Postings posted, emailed or otherwise transmitted on The Services by others and, as such, we do not guarantee the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of The Services (as described below), you understand that by using The Services, you may be exposed to Postings that are offensive or objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by us), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through The Services.
You agree not to use The Services to:
- Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
- Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
- Impersonate any person or entity, including, but not limited to any user of The Services, a director, officer, employee, shareholder, agent or representative of Habitz, Inc., our affiliates or any other person or entity, or falsely state or otherwise misrepresent your affiliation with Habitz, Inc., or our affiliates or any other person or entity;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through The Services;
- Upload, post, email or otherwise transmit any Postings or other materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party;
- Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial solicitation, except in those areas, if any, that are specifically designated for such purpose;
- Upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of a Community Area (or other portion of The Services) are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of The Services;
- Interfere with or disrupt The Services or servers or networks connected to The Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
- “Stalk” or otherwise harass another user or employee of The Services; or
- Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Services, including user names or passwords; or Access or attempt to access another user’s account without his or her consent.
8. Parental or Guardian Permission
Children under 13 are not permitted to register and use the Services without a parental or guardian permission. In order for Children under 18 to use the Services, a parent or guardian must first register onto the Services and add their children to the Services as additional users.
These Terms apply only to The Services, and not to the websites of any other person or entity. We may provide, or third parties may provide, links to other worldwide websites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
13. Third Party Products and Services
You may order services, merchandise or other products through The Services from other parties (collectively, the “Third Party Sellers”). All matters concerning the services, merchandise and other products desired from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
11. Password and User Security
If you are a registered user of The Services, you are entirely responsible for maintaining the confidentiality of your password and user account information. You agree to notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password. You are entirely responsible for any and all activities which occur under your user account. You agree to immediately notify us of any unauthorized use of your user account or any other breach of security known to you.
12. Health Disclaimer
The Services may provide weight loss management and information applications and content published over the Internet and is intended only to assist users in their personal weight loss efforts. Habitz, Inc. is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in The Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician before beginning any weight loss effort or regimen.
13. Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES: THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS ON THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. NEITHER HABITZ, INC., ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE SERVICES OR ANY FUNCTION CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL. NEITHER HABITZ, INC., ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS.
14. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SERVICES OR ANY WEBSITE OR WEBSITES LINKED TO THE SERVICES, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (F) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless and, at our option, defend Habitz, Inc. and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees and expenses) arising from your improper use of The Services or our products or offerings, your violation of these Terms, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
16. Governing Law and Choice of Forum
These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of The Services or these Terms shall be filed only in the state or federal courts located in Santa Clara County in the State of California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
17. Miscellaneous Terms
In any action against us arising from the use of The Services, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms may be modified only by our posting of changes to these Terms on The Services, or by written agreement of both parties. Each time you access The Services, you will be deemed to have accepted any such changes.
We may assign our rights and obligations under these Terms. These Terms will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms, or to exercise any right under the Terms, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.