IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY ALL OF THIS AGREEMENT, THEN DO NOT ACCESS, BROWSE OR USE THE SERVICES. MOREOVER, BARITASTIC DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR THE SERVICES WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT ABIDE BY THE PROVISIONS OF THESE TERMS & CONDITIONS, 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 RESTRICT ANY FURTHER ACCESS TO SUCH INFORMATION AND/OR FILES, OR OUR SERVICES, WITH OR WITHOUT NOTICE.
You must exercise caution, good sense and sound judgment in using the Services. You are prohibited from violating, or attempting to violate, the security of the Services. Any such violations may result in criminal and/or civil penalties against you. Baritastic will investigate any alleged or suspected violations and if a criminal violation is suspected, we may contact and/or cooperate with law enforcement agencies in their investigations.
- Definitions. For the purposes of this Agreement:
1.1. “Data” shall mean any content, materials or information of any kind, including personally identifiable information that you upload, send, email, display, perform, distribute, post or otherwise transmit to us, at our request or on your own, or through the Services or your Profile.
1.2. “Laws” shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of your country of residence or the country in which you use or access the App and the laws of any provinces, states or dependencies thereof.
1.3. “Parties” shall collectively refer to the Baritastic and you.
1.4. “Profile” shall collectively refer to the user profile that you create in order to access the Services.
1.5. “Provider” and grammatical variants thereof shall refer to a health care professional (an individual, or an organization of individuals) who may provide bariatric and bariatric related services to Users of the Services.
1.6. “Program” refers to the clinic, hospital, or other weight management program that may be shown in the Services and that is offered to the Parties via a unique code or email invitation.
1.7. “Suspend” or “Suspension” shall include the disabling of your Profile and/or the cessation of transmission of data via the App.
1.8. “You”, “you”, “your” and grammatical variants thereof shall refer to users of the Services.
- Agreement & Acknowledgement.
2.1 User Agreement. By using these Services, you accept this Agreement and agree to be legally bound and to abide the terms, conditions and notices contained or referenced herein, just as if you had physically signed them.
2.2 Changes to Terms and Conditions. From time to time, we may, in our sole discretion, change, modify, supplement or remove portions of this Agreement (“Additional Terms”). Such Additional Terms shall become effective upon posting by us on the Platform, the Mobile App, via the Service or sending you an email or other notification. You will deemed to have agreed to such Additional Terms by your decision to continue accessing the Mobile App, Platform or otherwise using any of the Services following the date in which such Additional Terms become effective.
2.3 Modification of the Services. In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services provided to you, including but not limited to, (i) restricting the time the Services are available, (ii) restricting the amount of use permitted, (iii) restricting or terminating any user’s right to use the Services and (iv) changing any feature or functionality provided by the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice. 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, our Services.
2.4 Downloading Mobile App. You may access the Mobile App which can be downloaded from an applications store or applications distribution platform, such as the Apple Mobile App Store or Google Play, (the “Mobile App Provider”). You acknowledge and agree that: (i) this Agreement is entered into between us, and not with the Mobile App Provider, and that we are solely responsible for the Mobile App (not the Mobile App Provider); (ii) the Mobile App Provider has no obligation to furnish any maintenance and support services with respect to the Mobile App; (iii) the Mobile App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile App or your possession and use of the Mobile App, including, but not limited to: (a) product liability claims; (b) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consume protection or similar legislation; (iv) in the event of any third party claim that the Mobile App or your possession and use of that Mobile App infringes that third party’s intellectual property infringement claim to the extent required by this Agreement; (v) the Mobile App Provider and its subsidiaries are third party beneficiaries of this Agreement as it relates to your license of the Mobile App, and that, upon your acceptance of this Agreement, the Mobile 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 Mobile App against you as a third party beneficiary thereof; and (vi) you must also comply with all applicable third party terms of service when using the Services.
- Term and Termination. This Agreement is effective until terminated. Either Party may terminate this Agreement at any time for any reason, with or without cause. You may terminate by disabling your Profile, uninstalling and destroying all copies of the Services. Baritastic may immediately terminate this Agreement at any time at its sole discretion, with or without notice to you. Additionally, your rights under this Agreement will terminate automatically if you fail to comply with any term(s) of this Agreement. Upon termination, all legal rights and licenses granted to you hereunder shall terminate immediately and you shall cease all use of the Services, uninstall and destroy all copies of the Services and any related documentation.
- Description. Subject to and conditioned upon Baritastic’s retained rights and all other terms and conditions set forth in this Agreement, Baritastic makes the Services available as soon as practicable after registration. In order to access the Services you will be required to complete a Profile. You represent and warrant that all user information you provide on the Profile or otherwise in connection with your use of the Services will be current, complete and accurate. As a registered User of the Services, you are entirely responsible for maintaining the confidentiality of both your password and your Profile and for all activities, whether authorized by you or not, that occur under your password and your Profile. You agree that you will not store any sensitive data, including but not limited to, social security numbers, credit card data, or any other personally identifiable information, except that which is required to create your Profile. You agree to immediately notify us of any unauthorized uses of your Profile or the Services or any other breaches of security affecting the Services. You must exercise caution, good sense and sound judgment in using the Services. Baritastic cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will we be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. You may also be held liable for any losses incurred by Baritastic, its affiliates, officers, directors, employees, consultants, agents, representatives due to someone else’s use of your Profile.
4.1. The App
4.1.1. Baritastic hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive, limited license to download and use the Services and all related documentation for your own personal, non-commercial use during the term of this Agreement. The Services are licensed, not sold, and any rights not expressly granted herein shall be reserved by Baritastic. Source code or other information pertaining to the logic design of the Services is specifically excluded from the license granted hereunder.
4.1.2. You recognize that the S and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the Services, are proprietary, and that all rights thereto, including copyright, are owned by Baritastic or, if sublicensed by Baritastic, by the respective owners of the Services. You further acknowledge that you have been advised that the Services, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of Baritastic, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to Baritastic, and that its use and disclosure must be carefully and continuously controlled.
4.1.3. Baritastic or, if sublicensed by Baritastic, the respective owners of the Services shall at all times retain title to the Services and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
4.1.4. The Services supplied hereunder are for your personal, non-commercial use. The Services are to be used only for the purposes specified in this Agreement and specifically as restricted in the following two subparagraphs of this Section 4.
22.214.171.124. You will not: (i) reproduce, copy, distribute or make the App or related documentation available over a network where it could be used by multiple devices at the same time, or permit anyone else to reproduce, copy, distribute or make the App or related documentation available over a network where it could be used by multiple devices at the same time whether such Services or documentation is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to this Agreement, nor; (ii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement.
126.96.36.199. You agree to notify us immediately if you obtain information as to any unauthorized possession, use or disclosure of the Services or documentation by any person or entity, and further agree to cooperate with Baritastic at our expense, in protecting our proprietary rights.
4.1.5. We may provide you with the ability to or otherwise necessitate the download of certain third-party software (the “Third Party Software”). The license conditions governing the use of the Third Party Software may differ from Baritastic’s own software licenses. You are bound by the conditions of all licenses pertaining to such Third Party Software and you should make yourself familiar with their terms and conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY BARITASTIC DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN BARITASTIC MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
4.1.6. In the event of termination of this Agreement, or upon any act which shall give rise to Baritastic’s right to terminate, or upon the expiration of the license for the Services which is subject to a limited-duration license, any and all licenses granted under this Section 3 shall terminate automatically, and you will remove, erase or destroy the Services and documentation and all copies thereof, wherever located, without demand or notice.
4.1.7. Baritastic may stop providing the Services or any updates thereto, including but not limited to the Third-Party Software, at any time without notice or any further liability to you.
4.2 Data Privacy
4.2.1. The information you provide while utilizing the Services will be used solely for facilitating contact with your existing or potential Provider or for your personal use to track your condition and/or progress. The Service is not a healthcare provider, healthcare clearing house, or health plan.
4.2.2. We will not use your information for any purpose other than facilitating communication between you and your Provider. We are committed to your privacy but cannot control the use of your mobile device. Some of the Service features may prepopulate your information as a convenience, but we will be responsible should your device be lost or stolen, nor are we responsible for any network security related to internet communications or cellular communications. If you have any concerns about your privacy or the security of your information, you should not download, install or use the Services.
4.3. Additional Features.
4.3.1. The Services may contain additional features such as the Connect to My Program (the “Program”) which may require compliance with additional terms.
4.3.2. If you choose to connect to this Program, you allow the Program to view your weight loss, exercise, and nutrition data that you log into the Service. The Program will also be able to see your name, email address, phone number, and surgery date (if entered). By connecting the Service to the Program you explicitly allow this Program and members of its team to review your information as needed. Use of this feature does not indicate that you are a current patient, previous patient nor does it establish a relationship with the Provider.
4.3.3. The Program may send messages from time to time. These messages will not include specific medical information but they may advocate for a proper diet and exercise habits in congruence with the Program guidelines. You may receive notification about upcoming events (i.e. support group reminders).
4.3.4 The Program may offer educational content in the App for convenience purposes only. Educational content does not constitute medical advice.
- No Warranties by the Company. The information provided by the Services is for informational convenience only. Before committing to any course of treatment you should consult with your doctor. You are expected to rely on your own judgment and the advice of your Provider before beginning or participating in any medical course of treatment. The Services are not intended to serve as medical advice. Use of the Services does not create a doctor-patient relationship. Do not use the App to communicate specific information related to your condition, symptoms, ongoing treatment or other specific health care information.
WE DO NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE. THE SERVICES PROVIDED BY THE PLATFORM AND/OR MOBILE APP DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION, NO DOCTOR-PATIENT RELATIONSHIP IS CREATED. USE OF THE SERVICES IS NOT FOR MEDICAL EMERGENCIES. IF YOU NEED IMMEDIATE MEDICAL ASSISTANCE OR HELP, PLEASE CALL 911.
BARITASTIC AGGREGATES INFORMATION THROUGH VARIOUS PUBLICLY AVAILABLE RESOURCES AND INFORMATION PROVIDED BY YOUR PROVIDER. THE SERVICES AND INFORMATION PRESENTED VIA THE SERVICES, INCLUDING TEXT, GRAPHICS, AUDIO, VIDEO, LINKS OR OTHER DIGITAL MEDIA ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, 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. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATIONS OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, NOR DO WEMAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. NO WARRANTY IS MADE BY BARITASTIC REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND BARITASTIC HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF INFORMATION, SERVICES OR GOODS PROVIDED TO YOU HEREUNDER.
- Baritastic’s Limited Liability. BARITASTIC EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL BARITASTIC, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OOR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATING TO, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SERVICES; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODSM DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OOR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (F) ANY OTHER MATTER RELATING TO THE SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, BARITASTIC’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, BARITASTIC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE SERVICES, AND BARITASTIC WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES.
YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY BARITASTIC, ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNES 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 FORM YOUR USE OF THE SERVICES.
YOU UNDERSTAND AND AGREE THAT THE CANCELLATION OR TERMINATION OF YOUR USE OF THE SERVICES IS YOUR SOLE RIGHT AND REEMDY WITH RESPECT TO ANY DISPUTE WITH US, INCLUDING, WITHOUT LIMITATION, ANY DISIPUTE RELATED TO, OR ARISING OUT OF (I)_THIS AGREEMENT OR OUR ENFORCEMENT OR APPLICATION THEREOF; (II) THE CONTENT AVAILABLE THROUGH THE SERVICES; OR (III) YOUR ABILITY TO ACCESS AND/OR USE THE SERVICES. THE TOTAL AGGREGATE LIABILITY OF BARITASTIC TO YOU UNDER ALL CIRCUMSTANCES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO TEN DOLLARS ($10). 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 THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT MUST BE INSTITUTED WIHTIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMMITATIONS SET FORTH HEREIN.
- Your Additional Obligations and Warranties.
7.1 You acknowledge that only you may use the Services and you agree and warrant that you shall not permit anyone else to use the Services or authorize any third party to access the Services and/or your Profile on your behalf. You are responsible for all activity that takes place with respect to the Services and/or your Profile, and you agree that in the event we believe or have reason to believe, in our sole discretion, that you have breached this Agreement or any of the warranties in this Section 6, we may, without prior notice to you and in our sole and exclusive discretion, suspend the use of the Services and/or your Profile and/or terminate this Agreement, without any liability of any kind. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against us relating to any action taken under this Section 6.1, and agree to indemnify and hold harmless Baritastic from and against any claims brought by third parties as a result of your Data or your use of the Services.
7.2. You agree and warrant that your use of the Service, shall at all times comply with your warranties under this Section 6 as well as all applicable laws.
7.3. You agree and warrant that you will not use the Services to transmit messages which: display, contain or link to any harmful matter or indecent materials or communications which are available to, or accessible by, minors; display or contain any material that consists of pornography, child pornography, or other obscene content, including but not limited to content involving or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age or which could otherwise result in harm to minors, all as determined in our sole discretion.
7.4. You agree and warrant that you shall not damage, disable, overburden, or impair the Services; interfere with anyone else’s use or enjoyment of the Service; or interfere with, defame, or abuse us or its officers, employees, or agents.
7.5. You affirmatively represent, agree and warrant that your Data and the use or distribution of your Data does not infringe the intellectual property rights of others, including, but not limited to, copyrights, trademark and service mark rights, patent rights and rights of publicity, both in the United States and throughout the world.
7.6. You agree and warrant that your Data shall not constitute or contain or link to material, which is libelous, slanderous, or defamatory; which violates the right of publicity or privacy of any party; or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights.
7.7. You agree and warrant that your Data shall not contain or link to any material which is offensive, harmful, violent, threatening, abusive or hateful, in our sole discretion.
7.8. You agree and warrant that any and all material(s) of every kind which you store or transmit using the Services shall at all times be free from any and all damaging software defects, including, but not limited to, software “viruses”, “worms”, “Trojan Horses,” and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system.
7.9. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Services.
7.10. You agree and warrant that you shall not resell or redistribute the Services or any part thereof, including but not limited to your Profile, notifications, alerts, or use any unauthorized means to modify or reroute the Services (or to attempt same).
7.11. You represent and warrant that you are over eighteen years of age and are fully competent to enter into this Agreement. To download, install, access or use the Services, you must be 18 years of age or over. If you are under 18 and you wish to use download, install, access or use the Service, you must get consent from your parent or guardian before doing so.
7.12. You represent and warrant that you are not a national or resident of any country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the US Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the US Department of Treasury.
7.13. You agree to abide by United States and other applicable export control laws and you further agree not to upload to your Profile any data or software that cannot be exported without prior written government authorization.
- Your Data and Our License to your Data.
8.1. The information you provide while utilizing the Services will be used solely for facilitating contact with your existing or potential Provider or for your personal use to track your condition and/or progress. The Service is not a healthcare provider, healthcare clearing house, or health plan.
8.2. We will not use your information for any purpose other than facilitating communication between you and your Provider. We are committed to your privacy but cannot control the use of your mobile device. Some of the Service features may prepopulate your information as a convenience, but we will be responsible should your device be lost or stolen, nor are we responsible for any network security related to internet communications or cellular communications. If you have any concerns about your privacy or the security of your information, you should not download, install or use the Services.
8.3 You grant to Baritastic and to its Affiliates a royalty-free, perpetual, irrevocable, fully-paid up, sublicensable, assignable, nonexclusive (including any moral rights), transferable, and worldwide license (as well as consent) to use, license, reproduce, modify, adapt, publish, translate, transmit, edit, reformat, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform, display and otherwise use any Data (in whole of in part and with or without the use of your name) worldwide and/or to incorporate the Data in other works in any form, media or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, the “Rights” that may exist in such Data.
8.5 Baritastic reserves the right to (i) remove, suspend, edit or modify any Data in our sole discretion, 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 Data or if Baritastic is concerned that you may have violated this Agreement, or for no reason at all and (ii) to remove, suspend or block any Data. Baritastic also reserves the right to access, read, preserve, and disclose any information as Baritastic reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support request, or (v) protect the rights, property or safety of Baritastic, its users and the public.
8.6 You acknowledge that you are solely responsible for all of your Data. We do not control the Data posted, emailed or otherwise transmitted on our Services by others and, as such we do not guarantee the accuracy, integrity or qualify of such Data.
8.7 Baritastic disclaims any perceived, implied, or actual duty to monitor the Data, and specifically disclaims any responsibility or liability for information provided on the Services. Under no circumstances will be liable in any way for any Data, including, without limitation, for any errors or omissions in any Data, or for any loss or damage of any kind incurred as a result of the use of the Data posted, emailed or otherwise transmitted to or through the Services.
- Intellectual Property Rights.
9.1 Trademarks. “BariApps” and “Baritastic” are service marks of the Baritastic, all rights reserved. The trademarks, logos, and service marks displayed on this app (collectively, the “Marks”) belong to Baritastic and/or its affiliates or third parties which have licensed those rights to Baritastic (“Partners”); Baritastic and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without express prior written consent. All other trademarks, product names, and company names and logos appearing on the Baritastic Services are the property of their respective owners.9.2 Software. You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain the property of Baritastic (and where applicable, its licensors). Furthermore, you acknoeldge and agree that the source and object code of the Platform and/or Mobile App and the format, directories, queries, algorithms, structure and organization of the Platform and/or Mobile App are the intellectual property and confidential information of Baritastic 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 Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted herein are hereby reserved and retained by Baritastic.
9.2 Copyright Materials; Copyright Notice. Unless expressly stated otherwise on the Company web site, you should assume that all content, images, and materials appearing on the Services (collectively the “Baritastic Content”) are the sole property of Baritastic. Both U.S. and international copyright and other intellectual property laws and treaties protect such Baritastic Content. You may not use, reproduce, display, or sell any Baritastic Content without the Baritastic’s prior written consent. You may not link to any page or frame any portion of the Baritastic Services in such a way as to remove, cover, alter, or obscure the Baritastic trademarks or as would otherwise confuse viewers as to the origin of the Baritastic Content.
10. Your Indemnification Obligations. You agree that you shall fully defend and indemnify Baritastic, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 6 or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless Baritastic, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that Baritastic shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
- No Joint Venture or Partnership. Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Baritastic and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Baritastic and you. Baritastic shall have no control or ownership interests of any kind in your business. Baritastic shall have no direct financial or other interest in, nor in any way “own” any online venture pertaining to your use of the Services. Baritastic relationship to you shall be restricted to matters pertaining to the provision of the App as set forth in this agreement.
- Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
- Non-Enforcement Does Not Constitute Waiver. Failure of Baritastic at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Baritastic.
14.1. Baritastic may provide notice to you via sms to the mobile phone or e-mail sent to the e-mail address associated with your Profile at the time such notice is sent. Such notice is deemed effective at the date and time of transmission, whether you receive it or not, and shall be deemed written notice for the purposes of this Agreement.
14.2. You may provide notice to Baritastic by personal delivery; by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the United States mail; or by Federal Express or other nationally-recognized courier. Such notice, statement or other document so delivered to Baritastic, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice may not be sent to Baritastic via e-mail.
- Assignment. This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Baritastic’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Baritastic may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion, without consent by or notice to you. This Agreement shall be binding upon and inure to the benefit of the Parties’ respective heirs, personal representatives, executors, administrators, successors and assigns.
- Jurisdiction, Venue, and Waiver of Jury Trial
16.1. YOU AGREE TO NEGOTIATE WITH BARITASTIIC IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT.
16.2. ANY AND ALL DISPUTES WHICH ARE NOT FIRST RESOLVED INFORMALLY MUST BE BROUGHT IN A COURT OF COMPETENT JURISDICTION LOCATED IN ORANGE COUNTY, CALIFORNIA, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT AND/OR YOUR ACCOUNT(S) WITH THE COMPANY. You and we irrevocably consent to personal jurisdiction and venue in such courts and you waive any challenge which you have or which may hereafter arise to personal jurisdiction or venue in such courts. You further agree that Baritastic shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that Baritastic acts to enforce this forum selection clause, regardless of whether Baritastic prevails in the underlying action.
16.3. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND BARITASTIC THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT AND/OR YOUR PROFILE(S) WITH BARITASTIC, and that such waiver shall be enforceable up to and including the day that trial is to start. Should any legal fees, costs, or other expenses be incurred by Baritastic with regard to enforcement of this jury waiver provision, Baritastic shall be entitled to recover such legal fees, costs, or other expenses without regard to whether Baritastic prevails in the underlying case.
16.4. You may not be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
- Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Baritastic has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and you hereby acknowledge and agree that you have not executed this Agreement in reliance upon any such representation or promise. This Agreement is solely for the benefit of you and Baritastic.
The Company is headquartered in Aliso Viejo, California.
Correspondence sent by mail, courier, or personal service should be to the following address:
Metagenics, Inc. d/b/a Baritastic
25 Enterprise #200,