Optimal Nutrition Systems, LLC, trading as Nutracarina, LLC ("Nutracarina" or "we"), provides Nutracarina software and services (defined collectively as the "Service" in this document) on the Nutracarina website. By providing your email address and creating an account as a user of the Service (a "User" or "you"), or by otherwise using the Nutracarina website or web application, you agree to comply with and be bound by the following terms and conditions (this "Agreement"), which we may change at any time by posting notice on the Service. PLEASE READ THIS AGREEMENT CAREFULLY, AND PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES. If you do not agree to these terms and conditions, please do not use the Service.
If you register as a User, you represent and warrant to Nutracarina that: (i) you are of legal age to form a binding contract; (ii) you will provide Nutracarina with accurate, current and complete registration information; and (iii) your registration and your use of the Service is not prohibited by law. Nutracarina reserves the right to suspend or terminate your registration, or your access to this Service, with or without notice to you, in the event that you breach any term of this Agreement.
BY USING THE NUTRACARINA WEBSITE OR WEB APPLICATION, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD (OR IF UNDER 18 YEARS OF AGE, THAT YOU ARE JOINED HEREIN BY A PARENT OR LEGAL GUARDIAN) AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW.
3. Ownership of the Service and Related Intellectual Property.
All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information), data, other content, software and materials displayed on the Service or used by Nutracarina to operate the Service, excluding any User Content (as defined below) is proprietary to us or to third parties. Nutracarina expressly reserves all rights, including all intellectual property rights, in all of the foregoing, and except as expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of them is strictly prohibited.
The mark "ONS Performance" is an unregistered trademark and the mark "Nutracarina" is a registered trademark; both are marks of Optimal Nutrition Systems, LLC or its affiliates, and they may not be used in connection with any service or products other than those provided by Nutracarina, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Nutracarina. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
4. Your Registration and User Content.
The information you submit to us as part of your registration, and any data, photographs, text, graphics, video, and other material that you submit or post to Nutracarina ("User Content") remain your intellectual property, and Nutracarina does not claim any ownership of the copyright or other proprietary rights in such information and User Content. Notwithstanding the foregoing, you agree that Nutracarina may retain copies of all registration information and User Content and use such information and User Content as reasonably necessary for or incidental to its operation of the Service and as described in these Terms and the Nutracarina Privacy Statement, and you grant Nutracarina the non-exclusive, worldwide, transferable, perpetual, irrevocable right to publish, distribute, publicly display and perform the User Content in connection with the Service.
5. License to Use the Service.
Subject to the terms of this Agreement, Nutracarina authorizes you to use the Service for your personal, non-commercial purposes. The Service includes certain premium features and services that Nutracarina offers for a fee ("Premium Services"); you are only authorized to use Premium Services if you have paid the applicable fees. You may not remove any copyright, trademark or other proprietary notices that have been placed in the Service. Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Service, or any portion of the Service, is strictly prohibited without the prior written permission of Nutracarina. The Service is licensed, not sold, and you obtain no rights in any copy of software related to the Service other than the rights described in this paragraph.
You agree, and represent and warrant, that your use of the Service, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Service or your use of it, and you will be solely responsible for your own individual violations of any of any such laws.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
We retain the right to implement any changes to the Service (whether to unpaid or Premium Services) at any time, with or without notice. You acknowledge that a variety of Nutracarina actions may impair or prevent you from accessing the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Nutracarina has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any content or services.
6.1 Fees and Payment
If you purchase any Premium Services, either on a one-time or subscription basis, you will pay Nutracarina the applicable fees and any related taxes (other than taxes on Nutracarina’s income). Nutracarina may change its fees at any time by publishing written notice on the Service. You authorize Nutracarina to charge the applicable fees to the payment card that you submit to Nutracarina, and agree that Nutracarina and any Nutracarina Affiliate may store your payment card information. You will pay all fees and taxes as they become due. Your obligation to pay fees continues through the end of the subscription period during which you cancel your subscription. If your payment card issuer or bank does not honor charges you have paid using your card, you will remain directly liable to Nutracarina for all unpaid amounts. If you fail to pay applicable fees, Nutracarina reserves the right to charge interest at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You may cancel your Premium Services here. You also acknowledge that Premium Services are subject to this Agreement and any additional terms related to the provision of the Premium Service.
Nonpayment of any fees or other sums due to Nutracarina or any other party related to your use of the Service will result in Service termination. We may, at our discretion, also appoint an outside debt collection agency to collect amounts owing to us. You agree to reimburse us for all costs that we incur in enforcing our collection of your unpaid amounts, including debt collection agency fees, reasonable attorneys' and legal fees and court costs.
All overcharges or billing disputes must be reported within 30 days of the time that the dispute occurred. If you dispute a charge to your payment card issuer that, in our reasonable judgment, is a valid charge under the provisions of this Agreement, you agree to pay us an additional charge ("Administration Charge") to investigate the matter. We will refund any such Administrative Charge if our investigation finds that your action in disputing the charge to your card issuer was justified because the charge was not, in fact, a valid charge under the provisions of this Agreement.
6.2 Refund Policy
All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. All Premium Services and your rights to use them expire at the end of the paid period of your Premium Services account.
7. Forums, Chat Spaces and Blogs.
A number of Service features, such as the feature allowing you to share diet information with friends, and any chat areas and blogs, offer opportunities for sharing information with others (the "Interactive Features"). Nutracarina does not edit or control User Content that you and other users post to or distribute through the Interactive Features, and will not be in any way responsible or liable for User Content. Nutracarina does not vet or control the Users or other individuals that use the Service or Interactive Features. Nutracarina shall not be liable for any loss or damage that any person may suffer as a result of using Interactive Features. All users use the Interactive Features at their own risk. Users should exercise caution in interacting with unknown persons that they meet using the Interactive Features in the same way that they would exercise caution in the physical world.
No user of any Interactive Feature shall:
(a) use a Interactive Feature in violation of, or in connection with any violation of, any local, state, national or international laws;
(b) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Content;
(c) except as otherwise permitted by this Agreement, harvest or otherwise collect information about others, including email addresses, without their consent;
(d) post any material more than once or "spam"; or
(e) engage in any other conduct that restricts or inhibits any other person from using or enjoying any Interactive Feature, User Content, or the Service, or which, in Nutracarina’s sole judgment, exposes Nutracarina or any officer, director, employee or agent of Nutracarina (each a “Nutracarina Affiliate") to any liability or detriment of any type.
8. Service Restrictions.
No user of this Service shall submit, upload to, distribute through or otherwise post to the Nutracarina website (including any Interactive Feature) any material that:
(a) is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
(b) contains any advertising, promotional, solicitation or other commercial material;
(c) contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
(d) infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
(e) contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or
(f) contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Neither you nor any other party may, without our prior written permission, deep link to, frame, spider, harvest or scrape the Service or User Content, or otherwise access the Service or User Content for any purposes, or use any machine, electronic, web-based or similar device to read or extract the Service or User Content by machine based or automated means.
9. Nutracarina Rights
Nutracarina Reserves the right (but is not obligated) to do any or all of the following:
(a) record User Content;
(b) Investigate an allegation that User Content or User registration information does not conform to the terms and conditions of this Agreement;
(c) remove User Content or User registration information that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
(d) monitor, edit or disclose any User Content or User registration information, and otherwise generally monitor your use of the Service; or
(e) edit or delete any User Content or User registration information, regardless of whether such content violates any terms and conditions of this Agreement.
Nutracarina and Nutracarina Affiliates have no liability or responsibility to users of the Service or any other person or entity for performance or nonperformance of the aforementioned activities.
10. Links to Third Party Website Are Not Endorsements.
The Nutracarina website may contain links to third party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Nutracarina. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
11. Ideas Submitted to Nutracarina.
Nutracarina is pleased to hear from you and welcomes your comments about the Service. In the event that you submit ideas or suggestions for the Service ("Service Comments"), the Service Comments will be deemed, and will remain, the sole property of Nutracarina. None of the Service Comments will be subject to any obligation of confidence on the part of Nutracarina, and Nutracarina and Nutracarina Affiliates will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Nutracarina will be entitled to unrestricted use and other exploitation of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.
12. Warranty Disclaimers, Limitations of Liability and Indemnity.
You acknowledge that your diet and exercise activities involve risks, which may involve risk of bodily injury or death, and that you assume those risks. You should consult a licensed physician prior to beginning or modifying any diet or exercise program that you undertake, and you acknowledge that Nutracarina has advised you of the necessity for obtaining such consultations. In addition, the Service should not be used by pregnant women or individuals under age 18 (or if under 18 years of age, that you are joined herein by a parent or legal guardian) and are otherwise legally qualified to enter into and form contracts under applicable law. The Service is a source of information, but it does not provide medical advice. In no event shall Nutracarina be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Service or any diet, exercise or other activity you undertake in connection with your use of the Service.
Without limitation of the foregoing, Nutracarina and Nutracarina Affiliates make no representations or warranties of any kind regarding the Service or the User Content. The Service and User Content are provided in "AS IS" condition, and Nutracarina and Nutracarina Affiliates EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE SERVICE AND USER CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICE AND USER CONTENT, AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE OR THE USER CONTENT. No advice or information, whether oral or written, obtained by you from Nutracarina, any of Nutracarina Affiliates or through the Service or User Content will create any warranty not expressly stated herein.
YOU USE THE SERVICE AND USER CONTENT AT YOUR OWN RISK, AND NEITHER NUTRACARINA NOR NUTRACARINA AFFILIATES WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO ANY OF THEIR OPERATION, USE OR OTHER EXPLOITATION.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM NUTRACARINA OR NUTRACARINA AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICE OR USER CONTENT, EVEN IF NUTRACARINA OR NUTRACARINA AFFILIATES HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AGGREGATE LIABILITY OF NUTRACARINA AND NUTRACARINA FOR ANY AND ALL DAMAGES ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU TO NUTRACARINA IN THE THREE (3) MONTHS BEFORE THE LIABILITY IS ALLEGED TO HAVE ARISEN, OR, IF NO AMOUNTS WERE PAID DURING SUCH PERIOD, THE AMOUNT OF $1. THIS LIMITATION WILL APPLY WHETHER THE DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless Nutracarina and Nutracarina Affiliates against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys' fees arising in connection with your use of the Service or your breach of any provision of this Agreement. Nutracarina reserves the right the assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You will cooperate with Nutracarina with respect to such defense and settlement.
13. Link to the Privacy Statement.
Nutracarina operates the Service under the Privacy Statement published at http://www.nutracarina.com/privacy. We urge you to read this policy now and, because the policy is updated from time to time, later at your convenience.
14. Digital Millennium Copyright Act.
Nutracarina complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Nutracarina website you may contact our Designated Agent at the following address:
Optimal Nutrition Systems, LLC
541 Tenth Street NW, Suite 317
Atlanta, GA 30318-5713
Telephone: (800) 817-9808
Any notice alleging that materials on this website infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the website;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the website of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
If material that you have posted to the website has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following:
(g) a physical or electronic signature of the subscriber; (h) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (i) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(j) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Lose It! may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
15. Applicable Law and Jurisdiction; Compliance.
You and Nutracarina agree that all matters arising from or relating to the use and operation of the Service will be governed by the substantive laws of the State of South Carolina, without regard to its conflicts of laws principles. A party shall not seek relief from a court with respect to any dispute arising in connection with this Agreement (except for any application for urgent equitable relief) unless such dispute has first been referred to voluntary mediation, and, if such mediation is not successful, has been submitted to arbitration conducted by a panel of three arbitrators sitting in Rock Hill, South Carolina. Each party shall choose one arbitrator and those two shall choose the third. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association and the decision of the arbitrators shall be binding and enforceable in any court of competent jurisdiction. The arbitrators shall have no power to award punitive damages nor any damages inconsistent with this Agreement or measured other than by the actual losses suffered by the parties. The award of the arbitrators may be enforced in any court of competent jurisdiction. If you choose to gain access to the Service from locations other than South Carolina, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Service in violation of U.S. export laws or regulations.
16. Miscellaneous Provisions.
No delay or omission by Nutracarina in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Nutracarina of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, "including" means "including but not limited to." If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Nutracarina regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a "signing" for all purposes. There shall be no third party beneficiaries to this Agreement other than Nutracarina Affiliates. In no event shall Nutracarina be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Nutracarina reasonable control.
Effective Date of Terms: 5/20/2013; updated 6/19/2013.