TERMS OF USE AGREEMENT
AVATAR NUTRITION
IMPORTANT: READ CAREFULLY
This Terms of Use Agreement (the “Agreement") is a legal agreement between “You” and Avatar Nutrition, LLC (“Avatar Nutrition,” “We” or“Us”) for the Service (as such term is defined below).
The Service is provided by Avatar Nutrition for the purpose of creating a platform for review of health, diet, and fitness information. Through the Service, You may input information that is used as indicators of health and fitness and the Service may provide You with information concerning health and fitness. The Service may also provide information and links related to other Avatar Nutrition products and services, and third party products and services.
IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AVATAR NUTRITION IS UNWILLING TO LICENSE THE SERVICE TO YOU, NO LICENSE IS GRANTED AND YOU ARE NOT AUTHORIZED TO USE THE SERVICE.
By accessing the Service’s interactive elements, creating a user account, or otherwise using the Service, You represent to Us that you are at least 18 years old and You agree to be bound by the terms of this Agreement along with the Avatar Nutrition Privacy Policy.
This Agreement governs your use of the Service only. Any other contractual agreements between You and Avatar Nutrition remain in effect.
1. Software Delivery and Acceptance
Subject to Your agreement to be bound by all terms and conditions of this Agreement, Avatar Nutrition authorizes You to use and access (i) Avatar Nutrition’s proprietary software, which includes compiled software code, images, music, media, templates, data, a user interface, any documentation accompanying the program, and any updates or supplements of such software and documentation (collectively, the“App”); and (ii) Avatar Nutrition’s proprietary software and related media accessible at www.avatarnutrition.com, including all related subdomains (the “Website”). The App and Website are referred to herein collectively as the “Service”. The Service is deemed accepted by You when the App is initially downloaded by You, or when you access the Website.
2. License Terms and Conditions
Subject to all terms and conditions of this Agreement, Avatar Nutrition hereby grants You a nonexclusive, personal, non-transferable, non-assignable, limited license to use and access the Service in accordance with this Agreement and any and all agreements and documents executed by You or delivered by Avatar Nutrition. The Service is licensed to you, not sold, and Avatar Nutrition reserves the right to revoke such license at any time and disable your ability to use the Service for any reason or for no reason.
2.1 Avatar Nutrition Privacy Policy. The Avatar Nutrition Privacy Policy located at https://www.avatarnutrition.com/privacy is incorporated herein by reference (“Privacy Policy”). The Privacy Policy provides information about your privacy rights and explains how Avatar Nutrition protects your personal information.
3. Proprietary Rights
The Service is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. All rights in the Service not expressly licensed under this Agreement are reserved to Avatar Nutrition. You shall not reproduce, retransmit, disseminate, sell, publish, broadcast, circulate, rent, lease, sublicense, assign, or otherwise transfer any portion of the Service except as expressly authorized in this Agreement. No right to use any trademark or trade name of Avatar Nutrition is granted to You hereunder other than the right to display the Avatar Nutrition marks that are placed on the Service and any Avatar Nutrition communications when they are rendered in the Service, in which case such marks may not be altered or removed by You without written approval by Avatar Nutrition.
4. Service Usage
4.1 Overview & Fees.
Accessing the Service and creating an account are free. Through the Service you may post content, review content, and communicate with other users. Some content offered by Avatar Nutrition and by other users of the Service requires payment by You to access. If You access content that does require payment, You agree to immediately pay to Avatar Nutrition the requested amount, and that You access such content at Your own risk of satisfaction in the content. Payments made by You to Us are not refundable for any reason. We do not provide credit, refunds, or prorated billing for subscriptions that are cancelled mid-month. In such a circumstance, You will continue having access to the Services until the end of the then-present billing cycle. We reserve the right to offer refunds, discounts, or other considerations in select circumstances at Our sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.
4.2 No Health-Related Advice.
The Service is provided as a platform to allow users to deliver and review content related to health and fitness. Health and fitness-related decisions may involve risk and Avatar Nutrition does not endorse or recommend any particular content provided through the Service. YOU REPRESENT AND WARRANT THAT YOU ASSUME ALL RISK AND RESPONSIBILITY ASSOCIATED WITH YOUR ACTIVITIES ARISING OUT OF YOUR USE OF THE SERVICE AND HEREBY RELEASE AND DISCHARGE US FROM AND WAIVE ANY AND ALL CAUSES OF ACTION AGAINST OTHER PARTIES, INCLUDING US, ARISING OUT OF THESE ACTIVITIES. THIS RELEASE AND WAIVER CONTEMPLATES BUT IS NOT LIMITED TO LIABILITY RELATED TO DEATH, DISABILITY, PERSONAL INJURY, AND/OR ILLNESS, WHICH MAY HEREAFTER ACCRUE AND/OR OCCUR FROM YOU USING OR IMPLEMENTING ANY CONTENT OR INFORMATION CONTAINED IN THE SERVICES. This release and waiver shall be construed as broadly as possible to provide a release and waiver to the maximum extent permissible by law.
When using the Service, you may receive information relating to health and fitness techniques, strategies, and other related information. You should not rely on any health and fitness-related information you receive from other users and you acknowledge that you should consult with such medical professionals you deem appropriate before participating in any activities recommended, disseminated, or otherwise related to the Service.
Therefore, You further represent and warrant that You have met with, been examined by, and consulted with a medical professional prior to implementing any or all of the content or information presented in the Service and that you shall not implement any or all of the content or information presented in the Service absent approval by Your medical professional. You further represent and warrant that you shall not share content or information presented by the Service with any third-party except a medical professional acting in the course of that medical professional’s duty.
If You are a medical professional who is training or otherwise advising users of the Service, or interacting with the Service on behalf of other users of the Service, YOU REPRESENT THAT YOU ASSUME ALL RISK AND RESPONSIBILITY ASSOCIATED WITH OR ARISING OUT OF YOUR INTERACTION WITH YOUR CLIENTS’ USE OF THE SERVICE AND YOU HEREBY RELEASE AND DISCHARGE US FROM AND WAIVE ANY AND ALL CAUSE OF ACTION AGAINST OTHER PARTIES, INCLUDING US, ARISING OUT OF THESE ACTIVITIES. THIS RELEASE AND WAIVER CONTEMPLATES BUT IS NOT LIMITED TO LIABILITY RELATED TO DEATH, DISABILITY, PERSONAL INJURY, AND/OR ILLNESS, WHICH MAY HEREAFTER ACCRUE AND/OR OCCUR FROM YOUR CLIENTS USING OR IMPLEMENTING ANY CONTENT OR INFORMATION CONTAINED IN THE SERVICES. This release and waiver shall be construed as broadly as possible to provide a release and waiver to the maximum extent permissible by law.
5. User Content
Avatar Nutrition may allow You to upload or post audio, video, images, text or other content through the Service (“User Content”). All feedback and other User Content you provide to Avatar Nutrition, whether via the Service or otherwise, shall be deemed to be non-confidential and You hereby waive any proprietary or confidential rights related to the User Content. Subject to the Privacy Policy and applicable law, Avatar Nutrition shall be free to use such information on an unrestricted basis, and You grant Avatar Nutrition all appropriate rights to do so in perpetuity.
Avatar Nutrition does not have the obligation to pre-screen any User Content. However, Avatar Nutrition reserves the right to remove or edit any User Content at any time and without notice to You. When you use the Service, you agree not to upload, post, modify, distribute, email, transmit, or otherwise make available any User Content that:
A. is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise injurious to third parties;
B. is protected by any patent, trademark, trade secret, copyright or other intellectual or proprietary right, unless you own such rights or have received all necessary consent;
C. impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, or interfere with someone else’s use of the Site;
D. falsely provides a review for a product or service that you have not purchased or used, or misrepresents your experiences relating to any products or services;
E. constitutes a charity request, petition for signatures, chain letter, letter or information relating to one or more pyramid schemes, advertising or solicitation for funds, political campaigning, mass mailing, any form of unsolicited commercial email or "spam," or an offering or dissemination of fraudulent goods, services, schemes or promotions;
F. is sent via unsolicited email, if such email could reasonably be expected to provoke complaints from its recipients;
G. is harmful, including without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information; and/or
H. violates any applicable local, state, national or international law. (collectively “Prohibited User Content”).
6. Digital Millennium Copyright Act – Notice & Takedown
If you are a copyright owner and believe that any User Content or any content provided by the Services infringes upon your copyright rights, you may submit a notification to Avatar Nutrition’s Designated Agent at:
Avatar Nutrition
PO Box 162198
Austin TX 78716-2198
Pursuant to the Digital Millennium Copyright Act 17 U.S.C. Sec. 512(c)(2), such notification must include:
A description of the copyrighted work that you claim has been infringed; a description of where the alleged infringing material is located; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; Your contact information (email and telephone number); and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
7. Representations and Warranties
You represent and warrant the following during your download, installation, and/or use of the Service:
A. You are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting” country;
B. You are not listed on any U.S. government list of prohibited or restricted parties;
C. You possess all necessary rights to distribute, post, or other disseminate any User Content you disseminate using the Service;
D. You are at least 18 years of age or older if the age of majority is more than 18 in your relevant jurisdiction; and
E. You will not post any Prohibited User Content.
8. Third Party Content
The Service may display, include, make available or link to content, data, information, applications, websites or materials from third parties (“Third-Party Content”). Avatar Nutrition is not responsible for the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, efficiency, advertising, terms of use, privacy policy, practices, software code or any other aspect of the Third-Party Content. You are encouraged to read the terms of use and privacy policy of any third-party websites to which you connect when using the Service. Avatar Nutrition disclaims all liability arising from or relating to the Third-Party Content.
Third-Party Content may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws. You may not use such proprietary content, information or materials in any way whatsoever except to use the Service for its intended purposes.
9. Internet Access
Use of the Service requires an internet connection and may result in charges from your cellular service provider. Avatar Nutrition is not responsible for any such charges. Avatar Nutrition is also not liable for any disruption, failure or malfunction of the Internet or other service providers or for any other situation or event that is out of Avatar Nutrition’s direct control. AVATAR NUTRITION IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF YOUR CELLULAR COMMUNICATION OR INTERNET SERVICE PROVIDERS, OR UNAVAILABILITY OR ERRORS ASSOCIATED WITH THEIR SYSTEMS OR SERVICES.
10. Restrictions on Use
Unless and to the extent specifically provided otherwise in writing by Avatar Nutrition, you may not:
A. separate any individual component of the Service for use;
B. incorporate any portion of the Service into other software or compile any portion of it in combination with other software;
C. use the Service, or any portion of Service, with any other service or over a network;
D. sell, rent, lease, lend, loan, distribute, assign or sublicense the Service or otherwise transfer any rights to it in whole or in part;
E. modify, reverse engineer, decompile, remove any proprietary notices or disassemble the Service in whole or in part, or create any derivative works from or of the Service, or encourage, assist or authorize any other person to do any of these things; or
F. make copies of or distribute the Service or electronically transfer it or any portion of it from one computer to another or over a network.
We may discontinue some or all of the functionality of the Service at any time. We may also terminate your right to use the Service at any time, and in such event we may modify it to make it inoperable. You agree to abide by all laws and regulations in effect regarding your use of the Service, including without limitation, all driving laws and laws relating to copyright-protected content. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.
11. Updates
Avatar Nutrition may from time to time, in its sole discretion, make updates, modifications, supplements or new versions of the Service or portions thereof available to You under this Agreement for the purpose of, among other things, distributing bug fixes, patches and feature improvements. Avatar Nutrition disclaims any and all liability relating to Your failure to install any updates to the Service. Avatar Nutrition does not have any obligation to provide any bug fixes, modifications, updates, or technical or end user support for the Service.
12. Collection and Use of Data
You acknowledge that the Service automatically collects information, data and statistics relating to your use of the Service, and compiles such information, data and statistics. Subject to the terms of the Privacy Policy, Avatar Nutrition reserves the right to use such information, data and statistics in the course of Avatar Nutrition’s business, and you hereby agree to Avatar Nutrition’s use. Unless specifically agreed in writing by Avatar Nutrition, Avatar Nutrition is not responsible for, and hereby disclaims all warranties relating to, the storage of any data for use with the Service.
13. Login Credentials
You shall not share Your user account information with others or allow third parties to use Your login credentials to the Service at any time or for any reason unless otherwise allowed in writing by Avatar Nutrition. You warrant, and Avatar Nutrition may assume and rely on the assumption, that any and all activity and use of the Service under Your user account is done by You. You are solely responsible for maintaining the security of, for example, your username, password, and all other user account information, and You agree that Avatar Nutrition will not be liable for any loss or damages resulting from use of your account by others.
14. Indemnification
You shall defend, indemnify, and hold harmless, Avatar Nutrition and its owners, officers, members, managers, directors, shareholders, subsidiaries, joint-ventures, partners, employees, agents, licensors, and licensees from and against any and all claims, actions, suits, proceedings, demands, losses, liabilities, damages, judgments, settlements, penalties, costs, and expenses (including without limitation all reasonable attorneys’ fees), known and unknown, arising out of (i) Your use of the Service; (ii) any dispute between You and any other user or users; (iii) Your use, creation or posting of Prohibited User Content; (iv) Your violation or breach of this Agreement, or (v) the infringement by You, or any other user of Your username or account, of any intellectual property or right of any person or entity.
15. Disclaimers; Limitations of Liability
AVATAR NUTRITION DOES NOT PROMISE THAT THE SERVICE OR ANY FUNCTIONALITY THEREOF WILL BE ERROR-FREE OR UNINTERRRUPTED OR THAT YOUR USE OF THE SERVICE WILL PROVIDE SPECIFIC RESULTS. THE SERVICE IS PROVIDED BY AVATAR NUTRITION “AS-IS” AND “AS-AVAILABLE” WITHOUT ANY OTHER WARRANTY OR REPRESENTATION OF ANY KIND. AVATAR NUTRITION CANNOT ENSURE THAT THE SERVICE OR ANY FILES OR OTHER DATA YOU DOWNLOAD OR UPLOAD IN RELATION TO THE SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. YOUR USE OF THE SERVICE, AND THE RESULTS AND PERFORMANCE ACHIEVED USING THE SERVICE, IS AT YOUR OWN RISK. AVATAR NUTRITION DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SERVICE. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVATAR NUTRITION BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, ANY PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF AVATAR NUTRITION, AND EVEN IF AVATAR NUTRITION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, AVATAR NUTRITION IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICE, AVATAR NUTRITION’S LIABILITY SHALL IN NO EVENT EXCEED THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE SERVICE PAID IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST AVATAR NUTRITION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
16. Termination
Without limiting its rights and remedies, if You fail to comply with the terms and conditions of this Agreement, Avatar Nutrition may, in its sole discretion, terminate this Agreement upon any such failure. Upon termination of this Agreement, You must promptly cease all use of the Service and discontinue exercising all license rights granted by this Agreement. Sections 3 through 21 of this Agreement will survive any termination of this Agreement.
17. Dispute Resolution; Choice of Law
A. This Agreement shall be construed and controlled by the laws of the State of Texas without reference to its choice of law provisions, and You consent to jurisdiction and venue in the courts sitting in Travis County, Texas. You waive and covenant not to assert all defenses of lack of personal jurisdiction and forum non conveniens. You further hereby acknowledge and consent that any controversy or claim arising out of or relating to these Terms & Conditions, or anything in any way related to the Services, shall be resolved through binding arbitration pursuant to the commercial arbitration rules of the American Arbitration Association, as follows:
i. The parties must first attend non-binding mediation (except as set forth below). Mediation shall be paid by the party that files for same and mediation shall take place in Austin, Texas, and Texas law shall govern.
ii. In the event that non-binding mediation is unsuccessful, then the dispute will be resolved through binding arbitration. Arbitration shall take place in Austin, Texas, and Texas law shall govern.
18. Export Law Compliance
You acknowledge that the Service is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Service, including all applicable U.S. export-control laws and regulations, as well as any end-user, end-use and destination restrictions issued by U.S. and other governments.
19. Other Agreements
This Agreement constitutes an individual consent by You to be bound by the terms of this Agreement and is the entire agreement between You and Avatar Nutrition with respect to Your use of the Service, and any and all other written or oral agreements or understandings previously existing between You and Avatar Nutrition with respect to such use are hereby superseded and cancelled. This Agreement is not intended to supersede or replace any other agreements entered into with Avatar Nutrition by You or Your company. To the extent there are any conflicts or inconsistencies between this Agreement and any other agreement, policy or documentation, the following order of precedence will apply for resolving such conflicts or inconsistences: (i) this Agreement shall control; and then (ii) any other agreements, policies, or documentation.
20. Void Where Prohibited
Although the Service is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Service are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Avatar Nutrition reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Service is void where prohibited. If you choose to access the Service from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
21. Miscellaneous
If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, so that this Agreement shall remain in full force and effect. Avatar Nutrition’ failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by Avatar Nutrition of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between Avatar Nutrition and you or any other party be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.
You acknowledge and agree that you have had an opportunity to review these Terms with independent legal counsel. You understand you are under no obligation to use the Services or otherwise engage in any activity that would act as an acceptance of these Terms, but you voluntarily do so.