TERMS OF SERVICE
LAST UPDATED April 7, 2019
PURPOSE AND OVERVIEW
Welcome to the Diet ID service by DQPN, LLC, a novel dietary assessment and tracking tool designed to assist in behavior change and improved diet quality. DQPN, LLC ("we," "us," or "our") offer access to the Diet ID service via our website and desktop app at https://www.dietid.com (the "Site") and a mobile application (the "App") available in Apple's App Store or Google Play. "User," "you" or "your" refers to the person accessing or using the Diet ID service, Site, or App.
There may be times when we offer a special feature that has its own terms and conditions that apply in addition to these Terms. In those cases, the terms specific to the special feature control to the extent there is a conflict with these Terms.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
If you use the Services, we may provide you with a dietary assessment, information, reports, feedback, tips, recipes, suggestions, reminders, and good eating challenges based on your user profile, selected eating habits, etc. The foregoing information and reports are intended only to assist you in your personal healthy eating efforts, are provided for informational and educational purposes only, are not intended to diagnose or treat any health or medial issue, and are not intended to constitute medical advice. You acknowledge and agree that we are not a medical organization and that we will not and cannot give medical advice or diagnoses. The information and reports generated by the Services should not be interpreted as a substitute for a consultation, evaluation, or treatment by a physician or other certified healthcare provider. You agree that we are not responsible for any information you receive, or how you utilize that information.
If you think you may have a medical emergency, call your physician or 911 immediately. Never disregard, avoid, or delay in obtaining medical advice from your physician or other certified healthcare provider because of something you have read in connection with the Services. We do not recommend or endorse specific tests, physicians, products, procedures or other information that may be mentioned in connection with the Services. You agree to use and/or rely on any information or reports you obtain in connection with the Services (whether from us or a third party) solely at your own risk.
While we have no obligation to review or modify user postings or other user generated content made available through the Services, we reserve the right to modify or remove any postings or content for any reason, including, without limitation, if such post or content violates these Terms, or we determine the post or content may be illegal, harmful, offensive, or infringing. In all instances, you agree it is your responsibility to evaluate the accuracy, timeliness, completeness, and usefulness of your Content, and any other posts or content you may receive by using the Services. Under no circumstances will we be liable for any loss or damage caused by your reliance on any content.
The Services are intended for use only by healthy adult individuals and those receiving medical treatment for certain health condition(s) if recommended by your physician or other certified medical professional. You acknowledge and agree that you are solely responsible for your own health, diet, research, and any personal health decisions. If you feel you are unhealthy or not receiving medical treatment, but should be, you acknowledge that you may be at an increased risk by using the Services without consultation with a physician or other certified medical professional. If you continue to use the Services with such increased risk, you acknowledge and agree that you accept full responsibility and that we shall not be liable or responsible for such increased risk even if we knew or should have known about it.
We reserve the right to refuse access to the Services to anyone for any reason at any time permanently or temporarily.
You will not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other Content (as defined below) via the Services.
You agree that you will not solicit, collect or use the login credentials of other users.
You are responsible for keeping your password secret and secure. You acknowledge and agree that we are not responsible for any unauthorized use of your account.
You will not defame, stalk, bully, abuse, harass, threaten, impersonate, or intimidate people or entities, nor will you post private or confidential information via the Services, including, without limitation, your or any other person's credit card information, social security, or alternate national identity numbers, non-public phone numbers, or non-public email addresses.
You will not use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Services and your Content, including but not limited to, copyright laws.
You will not change, modify, adapt or alter the Services or change, modify or alter another website so as to falsely imply that it is associated with us or the Services.
You will not access our private API by means other than those permitted us. Use of our API is subject to a separate set of terms.
You will not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a "spam") to any users.
You will not use domain names or web URLs in your username.
You will not interfere or disrupt the Services, or any servers or networks connected to, or used in connection with, the Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You will not inject Content or code or otherwise alter or interfere with the way any webpage is rendered or displayed in a user's browser or device.
You will not create accounts with the Services through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler, or scraper. We prohibit crawling, scraping, caching or otherwise accessing any content on the Services via automated means, including, without limitation, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with our express prior written consent).
You will not attempt to, or otherwise, restrict another user from using or enjoying the Services and you will not encourage or facilitate violations of these Terms or any other applicable terms.
We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate personal information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of these Terms.
You are responsible for any activity that occurs through your account and you agree that you will not sell, transfer, license, or assign your account, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, we prohibit the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide upon registration and at all other times will be true, accurate, current, and complete and you agree to update your information as necessary to maintain the same.
We reserve the right to force forfeiture of any username for any reason.
You are solely responsible for your interaction with other users of the Services, whether online or offline. You agree that we are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. It is your responsibility to exercise common sense and your best judgment when interacting with others, including when you submit or post Content, including any personal information or other information.
You are solely responsible for your conduct when using the Services and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, "Content") that you submit, post or display on or via the Services.
We reserve the right to remove any Content from the Services for any reason without prior notice. We may continue to store Content removed from the Services, including, without limitation, in order to comply with certain legal obligations. Consequently, we encourage you to maintain your own backup of your Content as we are not a backup service and you agree that you will not rely on the Services for the purposes of Content backup or storage. We will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Content or other information may not be secure. You agree that we are not responsible for, and do not endorse, Content posted within the Services.
It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, we do not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you further agree that we are free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
You acknowledge and agree that we cannot and will not be responsible for your used-generated Content posted on the Services or your use of any other content made available to you by the Services. You agree that your use of the Services is at your own risk.
We reserve the right to modify or terminate the Services or your access to the Services for any reason, without notice, at any time, and without liability to you, including for violation of these Terms. You can deactivate your account by logging into the Services and visiting the settings page to delete your account. If we terminate your access to the Services or you delete your account, your Content and all other data will no longer be accessible through your account, but your Content and other data may persist and appear within the Services. If you wish to have records of your account deleted from our internal logs after you have terminated your account, please email us at firstname.lastname@example.org and we will use commercially reasonable efforts to delete such information, provided that you acknowledge certain records may not be able to be deleted or may be stored in backup, cached or archival logs.
Upon termination, all licenses and other rights granted to you in these Terms will immediately cease.
LINKS TO OTHER WEBSITES
There may be links from the Services, or from communications you receive from the Services or us, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Services. The Services may also include third-party content that we do not control, maintain, or endorse. Functionality on the Services may also permit interactions between the Services and third-party web sites or features, including applications that connect the Services or your profile on the Services with a third-party web site or feature. If you use this functionality, you may be required to login to your account on the third-party service and you do so at your own risk. We do not control any of these third-party web services or any of their content. You expressly acknowledge and agree that we are in no way responsible or liable for any such third-party services or features, or if you make any of your Content or information available to such third-parties. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICES ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Services or your profile on the Services with a third-party service (each, a "Third Party Application") and such Third Party Application may interact with, connect to or gather and/or pull information from and to your Services account and profile. By using such Third Party Applications, you acknowledge and agree to the following: (i) if you use a Third Party Application to share information, you are consenting to information about your profile on the Services being shared; (ii) your use of a Third Party Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if we have not provided such information; and (iii) your use of a Third Party Application is at your own option and risk, and you will indemnify and hold the Diet ID Parties (defined below) harmless for activity related to the Third Party Application.
By creating an account on the Services, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
ELECTRONIC COMMUNICATIONS METHODS
As part of the Service, you may subscribe to receive certain alerts on your wireless device or other equipment via short message service, otherwise known as "push messages" ("Push Alerts"), by email ("Email Alerts"), your account, and via other types of alerts. We may present and you may select to receive such alerts from time to time. Certain alerts are available through your wireless device or otherwise equipment when it is within operating range of your wireless service provider or a computer having an active connection to the Internet. You are solely responsible for any message and data rates that may apply in connection with the alerts you receive.
PUSH ALERT DETAILS
If you subscribe to any of our Push Alerts, you agree to receive Push Alerts from us at the mobile device associated with the Service. You represent that you are the authorized user of the mobile device provided and associated with your Account, which will receive the Push Alerts. These alerts are part of our subscription service, when you receive multiple message, the frequency and availability of which depends on the alert types you select to receive. You may adjust, add, or remove your alert types at any time by editing the type of such Push Alerts by visiting https://www.dietid.com and adjusting your settings. Push Alerts may not be delivered to you if your wireless device is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. You acknowledge that time sensitive or critical alerts may not be timely received based on a number of factors beyond our control and that we do not guarantee that Push Alerts will be delivered.
EMAIL ALERT DETAILS
You must provide us with a valid email address for your account. If you enable Email Alerts, the email address you provide will be set as your default email address to which you will automatically receive Email Alerts. An email address is always required to use the Services and you must maintain a valid email address. You may adjust, add, or remove certain Email Alerts by unsubscribing from Email Alerts using the link at the bottom of such Email Alert and adjusting your email alert preferences. In addition to the Email Alerts we provide, you may subscribe to receive email alerts from third-parties by using the Services. If you do subscribe to receive email alerts from third-parties, your ability to adjust, add, remove, or opt-out of such email alerts shall be between you and that third-party. You acknowledge that we are not responsible or liable for such third-party email alerts, including, without limitation, the frequency, any failure to comply with an opt-out request, the content, or accuracy.
Some of the Services may be supported by advertising revenue and may display advertisements and promotions, and you hereby agree that we may place such advertising and promotions on the Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change at any time without notice to you.
You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to post the Content and grant the rights and licenses set forth in these Terms; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark, or any other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of the Content you post on or through the Services; and (iv) you have the legal right and capacity to enter into these Terms in your jurisdiction.
The Service contains content we own or license ("Diet ID Content"). To the extent permitted by law, Diet ID Content is protected by copyright, trademark, patent, trade secret and other laws. As between you and us, we own and retain all rights, title, and interest in the Diet ID Content and the Services. You agree not to remove, alter, or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Diet ID Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Diet ID Content. For avoidance of doubt, Diet ID Content includes, without limitation, content posted within the Services by other users.
If you believe that content residing on or accessible through the Services infringes or misappropriates your intellectual property right, please send an email to us detailing the alleged infringement or misappropriation to email@example.com along with the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property that has been allegedly infringed or misappropriated;
Identification of the content, or works or materials being infringed or misappropriated;
Identification of the content that is claimed to be infringing or misappropriating, including information regarding the location of the infringing or misappropriating content that the owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, e-mail address;
A statement that the notifier has a good faith belief that the content is not authorized by the owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is the owner or is authorized to make the complaint on behalf of the owner.
Our name, logo, service marks and certain other images we may use to represent us are our trademarks, and may not be copied, imitated or used, in whole or in part, without our prior written permission. In addition, all page headers, custom graphics, button icons and scripts are our service marks, trademarks and/or trade dress, and may not be copied, imitated or used, in whole or in part, without our prior written permission.
You grant to us a non-exclusive, limited right to use your name, trademarks, and logos (collectively, the “Marks”) on our website and in the Services for the purposes of providing the Services and to identify you as our customer.
Although it is our intention for the Services to be available as much as possible, there will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
DISCLAIMER OF WARRANTIES
THE SERVICES, INCLUDING, WITHOUT LIMITATION, DIET ID CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER DIET ID NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE "DIET ID PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICES; (B) THE DIET ID CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO DIET ID OR VIA THE SERVICE. IN ADDITION, THE DIET ID PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE DIET ID PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE DIET ID PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE CONTENT OR INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE DIET ID PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE DIET ID PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS.
BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE DIET ID PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES WILL THE DIET ID PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE DIET ID CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE DIET ID PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE DIET ID PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE DIET ID PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE DIET ID PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00). YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE DIET ID PARTIES' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE DIET ID PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE DIET ID PARTIES. BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at our request), indemnify and hold the Diet ID Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate with us as fully required in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.
Except if you opt-out or for disputes relating to: (1) your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); or (2) violations of the API terms ("Excluded Disputes"), you agree that all disputes between you and us (whether or not such dispute involves a third party) with regard to your relationship with us, including without limitation disputes related to these Terms, your use of the Services, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and us hereby expressly waive the right to a trial by jury. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules. You may bring claims only on your own behalf. Neither you nor us will participate in a class action or class-wide arbitration for any claims covered by these Terms. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You may opt out of this agreement to arbitrate. If you do so, neither you nor us can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: DQPN, LLC, c/o WeWork, 1001 Woodward Ave, Suite 500, Detroit, MI 48226.
You must include your name and residence address, the email address you use for your Diet ID account, and a clear statement that you want to opt out of this arbitration agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration and waiver of jury trial agreement will survive the termination of your relationship with us and termination of these Terms.
TIME LIMITATION ON CLAIMS
You agree that any claim you may have arising out of or related to your relationship with us must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
GOVERNING LAW & VENUE
These Terms are governed by and construed in accordance with the laws of the State of Michigan, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with us exclusively in a state or federal court located in Wayne County, Michigan and to submit to the personal jurisdiction of the courts located in Wayne County, Michigan for the purpose of arbitrating and litigating all such disputes. Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. All waivers must be in writing and signed by us. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. We reserve the right to change the dispute resolution provision and this provision, but any such changes will not apply to disputes arising before the effective date of the amendment. This dispute resolution provision will survive the termination of any or all of your transactions with us.
If you are using the Service on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that legal entity. These Terms constitute the entire agreement between you and us and governs your use of the Services, superseding and replacing any prior understandings, promises, representations and agreements, whether written or oral, between you and us. You will not assign the Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without our prior written consent. Any purported assignment or delegation by you without our prior written consent will be null and void. We may assign these Terms or any rights hereunder without your consent. If any provision of these Terms is found by a court of competent jurisdiction or during arbitration to be unlawful, void, invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from these Terms and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of the Terms remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify the Terms. These Terms do not confer any third-party beneficiary rights.
The information provided within the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Services or any portion of the Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we and our users provide. Software related to or made available by the Services may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
The effective date of these Terms is the date set forth at the top of this page. These Terms were written in English (US). To the extent any translated version of these Terms conflicts with the English version, the English version controls.
MODIFICATION OF THESE TERMS
We reserve the right, in our sole discretion, to change these Terms ("Updated Terms") from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. These Terms will govern any disputes arising before the effective date of the Updated Terms.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.